# Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Plan Requirements-Amendments > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A05-23917 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** December 12, 2005 - **Citation:** 70 FR 73524 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 112 [EPA-HQ-OPA-2005-0001; FRL-8007-2] RIN 2050-AG23 Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Plan Requirements—Amendments AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA or the Agency) is today proposing to amend the Spill Prevention, Control, and Countermeasure (SPCC) Plan requirements to reduce the regulatory burden for certain facilities by: Providing an option that would allow owners/operators of facilities that store less than 10,000 gallons of oil and meet other qualifying criteria to self-certify their SPCC Plans, in lieu of review and certification by a Professional Engineer; providing an alternative to the secondary containment requirement, without requiring a determination of impracticability, for facilities that have certain types of oil-filled equipment; defining and providing an exemption for motive power containers; and exempting airport mobile refuelers from the specifically sized secondary containment requirements for bulk storage containers. In addition, the Agency also proposes to remove and reserve certain SPCC requirements for animal fats and vegetable oils and proposes a separate extension of the compliance dates for farms. In proposing these changes, EPA is significantly reducing the burden imposed on the regulated community in complying with the SPCC requirements, while maintaining protection of human health and the environment. Further, the Agency requests comments on the potential scope of future rulemaking. In a separate document in today's Federal Register , the Agency is proposing to extend the compliance dates for all facilities. DATES: Comments must be received on or before February 10, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OPA-2005-0001 by one of the following methods: • Federal Rulemaking Portal: www.regulations.gov . Follow the on-line instructions for submitting comments. • Mail: The mailing address of the docket for this rulemaking is EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-2005-0001, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. • Hand Delivery: Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-2005-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov . The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of the comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Comments and suggestions regarding the scope of any future rulemaking should be clearly differentiated from comments specific to today's proposal ( e.g. , label Suggestions for Future Rulemaking and Comments on Current Proposal ). Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g. , CBI or other information whose disclosure is restricted by a statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the EPA Docket, EPA/DC, EPA West, Room B102, 1303 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202-566-1744, and the telephone number to make an appointment to view the docket is 202-566-0276. FOR FURTHER INFORMATION CONTACT: For general information, contact the Superfund, TRI, EPCRA, RMP and Oil Information Center at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC metropolitan area, call 703-412-9810 or TDD 703-412-3323. For more detailed information on specific aspects of this proposed rule, contact either Vanessa E. Rodriguez at 202-564-7913 ( rodriguez.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: This proposed rule would amend the requirements for Spill Prevention, Control, and Countermeasure (SPCC) Plans in 40 CFR part 112. First, the proposal would provide an alternative option for the owner/operator of a facility that meets specific qualifying criteria (hereafter referred to as a “qualified facility”) to self-certify that the facility's SPCC Plan complies with 40 CFR part 112, in lieu of the requirement for a Professional Engineer's (PE) review and certification. Second, the proposal would provide an alternative option for the owner/operator of a facility with oil-filled operational equipment that meets specific qualifying criterion (hereafter referred to as “qualified oil-filled operational equipment”) to establish and document an inspection or monitoring program, prepare a contingency plan, and provide a written commitment of manpower, equipment and materials in lieu of secondary containment for qualified oil-filled operational equipment without being required to make an individual impracticability determination. Third, the proposal would define and provide an exemption for motive power containers. Fourth, the proposal would exempt airport mobile refuelers from specifically sized secondary containment requirements for bulk storage containers. Fifth, the proposal removes and reserves certain SPCC requirements for animal fats and vegetable oils. Finally, the proposal provides a separate extension of the compliance dates for farms and, in a separate notice in today's Federal Register , the Agency is proposing to extend the compliance dates for all facilities. The contents of this preamble are: I. General Information II. Entities Potentially Affected by This Proposed Rule III. Statutory Authority and Delegation of Authority IV. Background V. Today's Action A. Qualified Facilities 1. Eligibility Criteria a. Total Facility Oil Storage Capacity Threshold b. Reportable Discharge History 2. Proposed Requirements for Qualified Facilities a. Self-Certification and Plan Amendments b. Environmental Equivalence and Impracticability Determinations c. SPCC Plan Exceptions 3. Alternative Options Considered a. Extension/Suspension Options b. Multi-tiered Structure c. One-time Notification B. Qualified Oil-filled Operational Equipment 1. Proposed Oil-Filled Operational Equipment Definition 2. Eligibility Criteria—Reportable Discharge History 3. Proposed Requirements for Qualified Oil-Filled Operational Equipment In Lieu of Secondary Containment a. Contingency Plans and a Written Commitment of Manpower, Equipment and Materials b. Inspections or Monitoring Program 4. Alternative Options Considered a. Capacity Threshold Qualifier b. Multi-Tiered Structure c. Extension/Suspension Options 5. Qualified Facilities and Qualified Oil-Filled Operational Equipment Overlap C. Motive Power 1. Definition of Motive Power 2. Proposed Exemption 3. Alternative Options Considered a. Equipment-Based Motive Power Exemption b. Threshold-Based Motive Power Exemption c. Exclusion From Storage Capacity Calculation D. Airport Mobile Refuelers 1. Definition of Airport Mobile Refueler 2. Proposed Amended Requirements E. Animal Fats and Vegetable Oils VI. Proposed Extension of Compliance Dates for Farms A. Eligibility Criteria B. Proposed Compliance Date Extension for Farms VII. 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 I. General Information To reduce regulatory burden for qualified facilities and to address several concerns involving oil-filled operational equipment, motive power containers, airport mobile refuelers, and provisions specific to animal fats and vegetable oils, EPA proposes to amend the SPCC Plan requirements in 40 CFR part 112. The Agency also proposes a separate extension of the compliance dates for farms. Specifically: • EPA proposes an alternative option for the owner/operator of a qualified facility to self-certify his/her SPCC Plan, prepared in accordance with 40 CFR part 112, in lieu of review and certification by a Professional Engineer (PE). A qualified facility is a facility subject to the SPCC requirements that (1) has a maximum total facility oil storage capacity of 10,000 gallons or less; and (2) had no reportable oil discharge as described in § 112.1(b) during the ten years prior to self-certification or, since becoming subject to the SPCC requirements if the facility has been in operation for less than ten years. Under this proposed approach, facility owners/operators of qualified facilities choosing to self-certify their SPCC Plans may not deviate from any requirement of the SPCC rule under § 112.7(a)(2) (with two exceptions) and may not make impracticability determinations in their SPCC Plans as described under § 112.7(d). The two exceptions are that facility owners/operators of qualified facilities choosing to self-certify their SPCC Plans would have flexibility with respect to the security requirements and container integrity testing. • EPA proposes a definition for oil-filled operational equipment and proposes that owners and operators of facilities where qualified oil-filled operational equipment is located have the alternative of preparing an oil spill contingency plan and a written commitment of manpower, equipment and materials, without having to determine that secondary containment is impracticable on an individual equipment basis (make an individual impracticability determination as required in § 112.7(d)); and establish and document an inspection or monitoring program for this equipment to detect equipment failure and/or a discharge in lieu of providing secondary containment for qualified oil-filled operational equipment. Today's proposal would eliminate the current requirement for an individual impracticability determination for oil-filled operational equipment at a facility that has had no discharges as described in § 112.1(b) from any oil-filled operational equipment during the ten years prior to the Plan certification date or, since becoming subject to the SPCC requirements if the facility has been in operation for less than ten years. • EPA proposes to exempt from the SPCC rule certain motive power containers. Motive power containers are onboard bulk storage containers used solely to power the movement of a motor vehicle ( i.e. , fuel tanks), or ancillary onboard oil-filled operational equipment ( i.e. , hydraulics and lubrication systems) used solely to facilitate its operation. This exemption would not apply to transfers of fuel or other oil into motive power containers at an otherwise regulated facility. This exemption would not apply to a bulk storage container mounted on a vehicle for any purpose other than powering the vehicle itself, for example, a tanker truck or mobile refueler. Additionally, this exemption would not apply to oil drilling or workover equipment, including rigs. • EPA proposes to exempt airport mobile refuelers from the specifically sized secondary containment requirements for bulk storage containers under § 112.8(c)(2) and (11) of the SPCC rule. Airport mobile refuelers are vehicles found at airports that have onboard bulk storage containers designed for, or used to, store and transport fuel for transfer into or from an aircraft or ground service equipment. The remaining provisions of § 112.8(c) and the general secondary containment requirements of § 112.7(c) would still apply to the onboard bulk storage containers on airport mobile refuelers and the transfers associated with this equipment. • The Agency proposes to amend the requirements for animal fats and vegetable oils in Subpart C of Part 112 by removing § 112.13 (requirements for onshore oil production facilities), § 112.14 (requirements for onshore oil drilling and workover facilities), and § 112.15 (requirements for offshore oil drilling, production, or workover facilities) because these sections do not apply to facilities that handle, store, or transport animal fats and vegetable oils. • EPA proposes to extend the compliance dates for farms, while the Agency considers whether the unique nature of this sector warrants differentiated requirements under the SPCC rule. • Under the current regulations in § 112.3(a), (b) and (c), a facility that was in operation on or before August 16, 2002 must make any necessary amendments to its SPCC Plan by February 17, 2006, and fully implement its SPCC Plan by August 18, 2006. A facility that came into operation after August 16, 2002 but before August 18, 2006, must prepare and fully implement an SPCC Plan on or before August 18, 2006. The owner or operator of an onshore or offshore mobile facility must maintain their Plan, but must amend and implement it, if necessary to ensure compliance with this part, on or before August 18, 2006. In a separate notice in today's Federal Register , the Agency is proposing to extend the compliance dates for all facilities to October 31, 2007. Reviewers should refer to that notice for a complete discussion of the proposed extension. Regarding modifications of the SPCC regulations, to the extent practicable, EPA will establish deadlines for compliance implementation that commence one year after promulgating the regulatory revisions. II. Entities Potentially Affected by This Proposed Rule Industry category NAICS code Crop and Animal Production 111-112 Crude Petroleum and Natural Gas Extraction 211 Coal Mining, Non-Metallic Mineral Mining and Quarrying 2121/2123/213114/213116 Electric Power Generation, Transmission, and Distribution 2211 Heavy Construction 234 Petroleum and Coal Products Manufacturing 324 Other Manufacturing (including animal fats and vegetable oil manufacturing) 31-33 Petroleum Bulk Stations and Terminals 42271 Automotive Rental and Leasing 5321 Gasoline Service Stations 447 Fuel Oil Dealers 4543 Waste Management and Remediation 562 Other Commercial Facilities (including Retail Stores, Apartment Buildings, Wholesalers and Janitorial Services) 44-45, 51-55, 56172 Transportation (including Pipelines and Airports), Warehousing, and Marinas 482-486/488112-48819/4883/48849/492-493/71393 Elementary and Secondary Schools, Colleges 611 Federal, State, Local Government and Military Installations 92 Hospitals/Nursing and Residential Care Facilities 621-623 The list of potentially affected entities in the above table may not be exhaustive. The Agency's aim is to provide a guide for readers regarding those 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 entitled 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 from vessels and facilities and to contain such discharges. The President delegated the authority to regulate non-transportation-related onshore facilities to the EPA in Executive Order 11548 (35 FR 11677, July 22, 1970), which has been replaced by Executive Order 12777 (56 FR 54757, October 22, 1991). A Memorandum of Understanding (MOU) between the U.S. Department of Transportation (DOT) and EPA (36 FR 24080, November 24, 1971) established the definitions of transportation- and non-transportation-related facilities. An MOU among EPA, the U.S. Department of Interior (DOI), and DOT, effective February 3, 1994, has redelegated the responsibility to regulate certain offshore facilities from DOI to EPA. IV. Background On July 17, 2002, EPA published a final rule amending the Oil Pollution Prevention regulation (40 CFR part 112) promulgated under the authority of section 311(j) of the CWA. This revised rule included 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 (67 FR 47042). The revised rule became effective on August 16, 2002. After publication of this rule, several members of the regulated community filed legal challenges to certain aspects of the rule. Most of the issues raised in the litigation have been settled, following which EPA published clarifications in the Federal Register to several aspects of the revised rule (69 FR 29728, May 25, 2004). 1 1 American Petroleum Institute v. Leavitt, No. 1:102CV02247 PLF and consolidated cases (D.D.C. filed Nov. 14, 2002). The remaining issue to be decided concerns the definition of “navigable waters” in § 112.1. EPA has extended the dates for revising and implementing revised SPCC Plans in 40 CFR 112.3(a) and (b) several times, and has extended the compliance date for 40 CFR 112.3(c) (see 69 FR 48794 (August 11, 2004) for further discussion on the extensions). This action was taken by EPA in order to provide the regulated community with sufficient time to comply with the 2002 revised rule and to allow the regulated community time to understand the 2004 clarifications and be able to incorporate them in their updated SPCC Plans. The current deadline for the preparation and certification of revised SPCC Plans for facilities maintaining their current SPCC Plan is February 17, 2006. Plans must be implemented by August 18, 2006. Facilities that became subject to the SPCC rule after August 16, 2002 are currently required to develop and implement their Plans by August 18, 2006. On September 20, 2004, EPA published two Notices of Data Availability (NODAs). The first NODA made available and solicited comments on submissions to EPA suggesting more focused requirements for facilities subject to the SPCC rule that handle oil below a certain threshold amount, referred to as “certain facilities” (69 FR 56182). Streamlined approaches for facilities with oil capacities below a certain threshold were discussed in the NODA documents. The second NODA made available and solicited comments on whether alternate regulatory requirements would be appropriate for facilities with oil-filled and process equipment (69 FR 56184). EPA has reviewed the public comments and data submitted in response to the NODAs in developing today's proposal. In addition, the Agency considered regulatory relief for airport mobile refuelers in response to concerns raised by the aviation sector. Airport mobile refuelers are vehicles that are used on an airport facility to refuel aircraft and ground service equipment (such as belt loaders, tractors, luggage transport vehicles, deicing equipment, and lifts) used at airports. The onboard bulk storage containers on airport mobile refuelers that are used to transport and transfer fuel into or from aircraft and ground service equipment are considered mobile or portable bulk storage containers under the SPCC rule because they are used to store oil prior to further distribution and use. As such, they are subject to all applicable SPCC rule provisions, including the sized secondary containment provisions of § 112.8(c)(2) and (11). These provisions require the secondary containment, such as a dike or catchment basin, to be sufficient to contain the capacity of the largest single compartment or container and include sufficient freeboard to contain precipitation. Regulated community members in the aviation sector have expressed concern that requiring such sized secondary containment for airport mobile refuelers is not practicable for safety and security reasons. (Included in the Docket for today's proposal are the letters that have been submitted to EPA regarding this matter.) Specifically, it has been argued that to require these refuelers to park in specially designed secondary containment areas located within an airport's aircraft operations area could create a safety and security hazard because it would require grouping of the vehicles or place impediments in the operations area. Additionally, requiring mobile refuelers to return to containment areas located within the airport's tank farm between refueling operations may increase the risk of accidents (and therefore accidental oil discharge), as the vehicles would travel with increased frequency through the busy aircraft operations area. EPA acknowledges these concerns and seeks to provide relief for airport mobile refuelers from the specifically sized secondary containment requirements for bulk storage containers, while protecting the environment from refueler spills, particularly those associated with transfers. Consequently, these refuelers remain subject to the other bulk storage container requirements under § 112.8(c) and the general secondary containment requirements under § 112.7(c) which also applies to the transfers of oil associated with airport mobile refuelers. In contrast to a mobile or portable bulk storage container such as a mobile refueler, a “motive power container” is an integral part of a motor vehicle (including aircraft), providing fuel for propulsion or providing some other operational function, such as lubrication of moving parts or for operation of onboard hydraulic equipment. Motive power containers on vehicles used solely at non-transportation related facilities fall under EPA jurisdiction and are subject to the SPCC regulation. Examples of motive power vehicles include, but are not limited to: buses; recreational vehicles; some sport utility vehicles; construction vehicles; aircraft; farm equipment; and earthmoving equipment (e.g., such as at a drilling or workover facility). Examples of facilities or locations that may be covered by the SPCC requirements solely because of the presence of motive power containers include, but are not limited to, heavy equipment dealers, commercial truck dealers, and parking lots. While the concept of “motive power” is not directly addressed in the SPCC regulation, such vehicle fuel containers may fall under the definition of “bulk storage container” in § 112.2, while the onboard lubrication system may be considered oil-filled operational equipment. Therefore, motive power containers which store oil used for the propulsion of a vehicle are subject to all the requirements under § 112.8(c) if they have a capacity of 55 gallons or more. These requirements include specifically sized secondary containment for bulk storage containers, integrity testing (visual plus non-destructive testing), and a requirement to engineer containers to avoid discharges (such as an overfill alarm). Additionally, any oil-filled operational equipment with a capacity of 55 gallons or more mounted on a vehicle are subject to the general secondary containment requirements listed in § 112.7(c). EPA recognizes that, in most cases, the requirements of § 112.8(c), including specifically sized secondary containment and the general secondary containment requirements under § 112.7(c), are not practicable for motive power containers. It has never been EPA's intent to regulate motive power containers. Therefore, EPA is proposing to exempt such motive power containers from the SPCC regulation. In the July 17, 2002 final SPCC rule, the Agency promulgated general requirements for SPCC Plans for all facilities and all types of oil in § 112.7. In response to the Edible Oil Regulatory Reform Act (EORRA), EPA promulgated separate subparts in part 112 for facilities storing or using various classes of oil, but the requirements in each subpart are the same. EORRA required most Federal agencies to differentiate between and establish separate classes for various types of oil, specifically, between animal fats and oils and greases, and fish and marine mammal oils and oils of vegetable origin, including oils from seeds, nuts, and kernels; and other oils and greases, including petroleum. The result of this approach was that the new Subpart C included requirements for animal fat and vegetable oil (AFVO) facilities—onshore facilities (excluding production facilities) (§ 112.12), onshore oil production facilities, (§ 112.14) onshore oil drilling and workover facilities (§ 112.13), and requirements for offshore oil drilling, production, or workover facilities (§ 112.15). While the Agency recognized that some of these requirements are not applicable to facilities that handle, store or transport AFVO, these sections were promulgated because the Agency had not proposed differentiated SPCC requirements for public notice and comment. As a result, the current requirements for petroleum oils were also applied to animal fats and vegetable oils. EPA is today proposing to remove those sections from the SPCC requirements that are not applicable or appropriate to animal fats and vegetable oils. Additionally, EPA has issued the SPCC Guidance for Regional Inspectors. The guidance document is intended to assist regional inspectors in reviewing a facility's implementation of the SPCC rule. The document is designed to facilitate an understanding of the rule's applicability, to help clarify the role of the inspector in the review and evaluation of the performance-based SPCC requirements, and to provide a consistent national policy on several SPCC-related issues. The guidance is also available to both the owners and operators of facilities that may be subject to the requirements of the SPCC rule and to the general public on the Agency's website at www.epa.gov/oilspill . This guidance is a living document and will be revised, as necessary, to reflect any relevant future regulatory amendments in a timely manner. Accordingly, EPA welcomes comments from the regulated community and the public on the guidance document within 60 days of this NPRM, as described on the website. The guidance document is a separate effort from this rulemaking. EPA does not plan to address comments on the guidance document when taking final action on this rule. Comments on the guidance document should not be submitted to the docket for this rulemaking. Refer to the website www.epa.gov/oilspill for the text of the guidance document and for instructions for providing suggestions on the guidance document. The EPA urges readers to review the guidance document for assistance in understanding the SPCC rule and today's proposal. Pursuant to today's proposal, EPA anticipates issuing an updated guidance document in 2006 to reflect finalization of this rulemaking such that inspectors and the regulated community have accurate and timely information on SPCC requirements. Although the scope of today's proposal was originally intended to address only certain targeted areas of the SPCC requirements, the Agency is including several additional proposed modifications to address a number of issues and concerns raised by the regulated community. As highlighted in the EPA Regulatory Agenda and the 2005 OMB report on “Regulatory Reform of the U.S. Manufacturing Sector,” there are other issues under consideration for possible future rulemaking action. The modifications proposed today do not preclude a future rulemaking on other issues not addressed in today's proposal. Rather, EPA is working to identify additional areas where regulatory reform may be appropriate. For these additional areas, the Agency expects to issue a proposed rule in 2007. Additionally, EPA in conjunction with DOE will be conducting an energy impact analysis of the SPCC requirements, and will consider the results of this analysis to inform the Agency's deliberations over any future rulemaking. EPA is interested in whether there are other aspects of the SPCC regulatory requirements, beyond those that are addressed in today's proposal, that should be the focus of future rulemaking. The Agency also requests that commenters who provide suggestions regarding future rulemaking clearly differentiate them from comments submitted on today's proposal (e.g., label Suggestions for Future Rulemaking and Comments on Current Proposal). The Agency will not address these suggestions when taking final action on this proposed rule, but will take them into consideration in future rulemaking decisions. V. Today's Action A. Qualified Facilities EPA proposes to amend the Oil Pollution Prevention regulation (40 CFR part 112) to provide an option to allow the owner or operator of a facility that meets the qualifying criteria (hereafter referred to as a “qualified facility”) to self-certify the facility's SPCC Plan in lieu of certification by a licensed professional engineer (PE). EPA proposes to amend § 112.3 to describe the SPCC eligibility criteria that a regulated facility must meet in order to be considered a qualified facility. A qualified facility would be a facility subject to the SPCC rule that (1) has an aggregate facility oil storage capacity of 10,000 gallons or less; and (2) had no discharges as described in § 112.1(b) during the ten years prior to self-certification or since becoming subject to the SPCC requirements if less than ten years. Facilities that have been subject to SPCC for less than ten years, including new facilities, would need to demonstrate no discharges as described in § 112.1(b) only for the period of time they have been subject to the SPCC rule. Self-certified Plans would not be allowed to include “environmentally equivalent” alternatives to required Plan elements as provided in § 112.7(a)(2) or to claim impracticability with respect to any secondary containment requirements as provided in § 112.7(d). The two exceptions for which the owner and operator would still be allowed to use environmentally equivalent measures are with respect to security and integrity testing. Facilities with complicated operations and lower capacities may find that the current rule offers a more cost-effective method of achieving compliance than the proposed option. Therefore, a qualified facility could choose to follow the current SPCC requirements (including the PE certification) to take advantage of the flexibility offered by PE-certified impracticality determinations and environmentally equivalent measures. 1. Eligibility Criteria a. Total Facility Oil Storage Capacity Threshold EPA proposes to limit qualified facilities to a total maximum storage capacity of 10,000 gallons of oil. EPA considered many different factors before selecting this storage capacity. First, EPA has established 10,000 gallons as a threshold in several other rules relating to oil discharges. This threshold quantity is used in the National Oil and Hazardous Substances Pollution Contingency Plan (National Contingency Plan or NCP) to classify oil discharges based on the location and size of the discharge (see 40 CFR 300.5). The NCP refers to discharges greater than 10,000 gallons to inland waters as “major,” while other thresholds are used to classify “minor” and “medium” discharges. The classes are provided as guidance to the On-Scene Coordinator (OSC), and serve as criteria for the actions delineated in the NCP. It is important to note, however, that the NCP quantitative thresholds are only provided to help the OSC determine response action, and do not imply associated degrees of hazard to the public health or welfare, or environmental damage. The NCP size classes nevertheless define an oil discharge to inland waters exceeding 10,000 gallons as a major discharge. A discharge of 10,000 gallons or more is also one of the factors used in identifying facilities that must prepare and submit a Facility Response Plan (FRP) under § 112.20(f)(1). The FRP rule applies to facilities that could reasonably be expected to cause substantial harm to the environment due to a discharge to waters of the U.S. and adjoining shorelines. Second, state regulations also provide support for the use of a 10,000-gallon threshold. A number of states differentiate regulatory requirements based on a facility's total storage capacity, with some states specifying a 10,000-gallon threshold. For example, Maryland requires that all commercial facilities storing more than 10,000 gallons of oil obtain an oil operations permit; Minnesota requires facilities storing between 10,000 and 1,000,000 gallons of oil to prepare a prevention and response plan; and Oregon places special requirements on marine facilities storing more than 10,000 gallons of oil. The 10,000-gallon threshold is also frequently used in setting requirements for certain storage tanks. For example, New York requires a “secondary containment system” around all aboveground storage tanks (ASTs) with a storage capacity greater than or equal to 10,000 gallons, and Wisconsin caps the size of ASTs that can be used for fueling vehicles at 10,000 gallons. Finally, 10,000 gallons is a common storage tank size, and EPA believes that setting a maximum capacity at 10,000 gallons would address the concerns that smaller facilities have raised. In fact, the Small Business Administration Office of Advocacy suggested that a 10,000-gallon threshold is a reasonable volume to address the concerns of facilities with relatively smaller volumes of oil. The Agency seeks comments on whether this threshold appropriately addresses the concerns of facilities with relatively smaller volumes of oil, while maintaining the environmental protection intended by the regulation. If commenters suggest alternative volume thresholds, it will be important for the comments to also include a justification for such alternative volume thresholds in order for the Agency to adequately consider the comments submitted. This data would be useful in final rule deliberations. While EPA recognizes that a discharge of less than 10,000 gallons can be harmful, regardless of how the NCP defines “major discharge,” EPA believes that it is reasonable to allow facilities with a capacity of no more than 10,000 gallons to prepare and implement a Plan that complies with the SPCC rule requirements and provides adequate protection against discharges without the involvement of a PE. These facilities generally have less complex operations and petroleum system configurations, and smaller oil storage capacities than other types of facilities subject to the SPCC requirements. Thus, the Agency believes that a responsible owner or operator at these facilities should be able to comply with the SPCC rule provisions without review and certification of the SPCC Plan by a PE, and that simplifying the rule will result in greater environmental protection by improving compliance. b. Reportable Discharge History EPA proposes that a qualified facility subject to the SPCC requirements must have no reportable oil discharges as described in § 112.1(b) during the ten years prior to self-certification or since becoming subject to the SPCC requirements, whichever is less. Facilities that have been subject to SPCC for less than ten years, including new facilities, would need to demonstrate no discharges as described in § 112.1(b) only for the period they have been subject to SPCC. This criterion is based on a proposal regarding oil-filled electrical equipment submitted by the Utility Solid Waste Activities Group (USWAG), as described in the documents supplementing the September 20, 2004 NODA at 69 FR 56184. In its proposal, USWAG recognized that facilities that pose a risk, in terms of oil discharges in quantities that are harmful (reportable under 40 CFR part 110), should not be granted relief. USWAG specifically proposed a ten-year spill history as a potential criterion to be eligible for relief. In general, NODA commenters expressed strong support for the USWAG proposal. As in the case of oil-filled operational equipment, the Agency believes that a clean spill history is a suitable criterion for demonstrating eligibility for Plan self-certification, while still effectively maintaining good prevention practices. Part 110 defines a discharge of oil in such quantities that may be harmful to the public health, welfare, or the environment of the United States as a discharge of oil that violates applicable water quality standards; a discharge of oil that causes a film or sheen upon the surface of the water or on adjoining shorelines; or a discharge of oil that causes a sludge or emulsion to be deposited beneath the surface of the water or adjoining shorelines (40 CFR 110.3). The Agency refers to such discharges in § 112.1(b) of the rule. Any person in charge of a facility must report any such discharge of oil from the facility to the National Response Center (NRC) at 1-800-424-8802 immediately. While EPA recognizes that past release history does not necessarily translate into a predictor of future performance, the Agency believes that discharge history is a reasonable indicator of a facility owner or operator's ability to develop an SPCC Plan for the facility without the involvement of a PE. Hence, EPA proposes to use a facility's discharge history as a qualification criterion indicating the facility's ability to effectively develop and implement its SPCC Plan. By establishing a good oil spill prevention history, a facility qualifies for the self-certification option offered in this proposal. The Agency requests comments on the appropriateness of a reportable discharge history criterion for determining the qualification of a facility for the self-certification option, whether it is necessary, and whether there are other indicators of a facility's effective implementation of the oil pollution prevention requirements under part 112 that should be considered. In addition, the Agency also specifically requests comments on the proposed ten-year period for which facilities would be required to have had no reportable discharges in order to meet this qualification. The Agency requests that any alternative criterion or time period suggested include an appropriate rationale and supporting data to assist the Agency in considering them for final action. The Agency is also aware that events such as natural disasters, acts of war or terrorism, sabotage, or other calamities, beyond the control or planning ability of the facility owner or operator, may cause a reportable oil discharge. The Agency therefore requests comments on how to account for such occurrences in the discharge history criterion. 2. Proposed Requirements for Qualified Facilities a. Self-Certification and Plan Amendments Some in the regulated community, particularly facilities with relatively smaller volumes of oil, identified the cost of the PE certification of SPCC Plans as one of its major concerns. This view was echoed in the comments submitted in response to the NODAs. The Agency has reviewed the requirements in light of the information provided and today proposes to allow for self-certification of SPCC Plans by owners and operators of qualified facilities. With this proposal, the Agency is responding to those concerns. The elements of the proposed self-certification requirement are very similar in scope to those of the PE certification: owners and operators that choose to self-certify their Plans must certify that they are familiar with the requirements of the SPCC rule; they have visited and examined the facility; the Plan has been prepared in accordance with accepted and sound industry practices and standards; procedures for required inspections and testing have been established; the Plan is being fully implemented; the facility meets the qualification criteria set forth under § 112.3(g)(1); the Plan does not include any environmental equivalence measures as described in § 112.7(a)(2); the Plan contains no determinations of impracticability under § 112.7(d); and the Plan and the individual(s) responsible for implementing the Plan have the full approval of management and the facility has committed the necessary resources to fully implement the Plan. The self-certification provision would be optional. Under today's proposal, an owner or operator of a qualified facility could choose to comply with the current requirements under part 112 if that is more suitable to his/her particular situation. Qualified facilities that choose to self-certify would not automatically lose eligibility for a self-certified Plan and be required to obtain PE certification in the event of a discharge as described in § 112.1(b). EPA has the authority to require SPCC Plan amendments under § 112.4. Section 112.4(a) requires a facility that has discharged more than 1,000 gallons of oil in a single discharge as described in 40 CFR part 110, or that has discharged more than 42 gallons of oil in each of two discharges as described in 40 CFR part 110 in any 12-month period, to submit information to the EPA Regional Administrator (RA) within 60 days of the date of the discharge. As per § 112.4(d), the RA may require the facility to amend its SPCC Plan in order to prevent and contain discharges, and the RA could require a facility to obtain PE-certification of its SPCC Plan. In addition, a discharge of oil “in such quantities as may be harmful”, as defined in 40 CFR 110.3 that does not trigger the reporting requirements of § 112.4(a) must still be reported to the National Response Center. Criminal action can be taken against an owner or operator of a facility if discharges are not reported. EPA also receives copies of the NRC reports and has the authority under § 112.1(f) to require a facility to prepare and implement an SPCC Plan or any applicable part of a Plan. The time frame for this review and amendment process is described in § 112.4. The facility may choose to appeal the RA's decision to require a Plan amendment under § 112.4. The RA also has authority to require preparation and implementation of a Plan or applicable part of a Plan under § 112.1(f). The Agency requests comment on the appropriateness of using the existing authorities under the SPCC regulations rather than establishing a separate process that would automatically require a facility to obtain PE review and certification of the facility's SPCC Plan in the event of a reportable discharge. The Agency requests that any alternative approaches presented include an appropriate rationale and supporting data in order for the Agency to be able to consider them for final action. Under § 112.5 of the SPCC rule, an owner or operator must review and amend the SPCC Plan following any change in facility design, construction, operation or maintenance that materially affects its potential for a discharge as described in § 112.1(b). A PE must then certify any and all of these technical amendments to the SPCC Plan, as currently required under § 112.3(d). Under today's proposal, technical amendments to SPCC Plans of qualified facilities would not be required to be certified by a PE. Instead, an owner or operator would be allowed to self-certify technical amendments to the Plan under the proposed § 112.3(g)(2) provision, and facilities with PE-certified Plans which qualify for self-certification would be allowed to choose to self-certify future technical amendments rather than hire a professional engineer to certify the technical amendment. Facilities would be required to document the self-certification of a technical amendment in the SPCC Plan in accordance with § 112.3(g)(2). b. Environmental Equivalence and Impracticability Determinations Under § 112.7, facility owners and operators have the flexibility to deviate from specific rule provisions if the Plan states the reason for nonconformance and if equivalent environmental protection is provided by some other means of spill prevention, control or countermeasure. These “environmentally equivalent” measures must be described in the SPCC Plan, including how the equivalent environmental protection will be achieved based on good engineering practice. Allowance for “environmentally equivalent” deviations is provided in § 112.7(a)(2) and are only available for requirements not related to secondary containment, such as fencing and other security measures, preventing catastrophic tank failure due to brittle fracture, integrity testing, and liquid level alarms. As part of the SPCC Plan, any environmentally equivalent measures are also required to be certified by a PE. The PE's SPCC Plan certification requirements include consideration of industry standards for the Plan, which would include equivalent environmental protection measures. The SPCC rule also provides flexibility for owners/operators who determine that the general secondary containment requirements in § 112.7(c) or any of the applicable additional requirements for secondary containment in subparts B and C are impracticable. Where impracticability is demonstrated, the SPCC rule allows facility owners and operators the flexibility to instead develop a contingency plan and comply with additional requirements as described in § 112.7(d). The SPCC Plan must explain why containment measures are not practicable, provide an oil spill contingency plan that follows the provisions of 40 CFR part 109 (Criteria for State, Local and Regional Oil Removal Contingency Plans), and provide a written commitment of manpower, equipment, and materials required to expeditiously control and remove any quantity of oil discharged that may be harmful as described in 40 CFR part 110. A PE must certify any impracticability determinations, as well as the contingency plan and additional measures implemented in lieu of containment. Because of the expertise that a PE has in evaluating whether particular measures provide equivalent environmental protection and in knowing how to effectively implement such measures, EPA believes that the flexibility in these performance-based provisions is best suited to SPCC Plans that are reviewed and certified by a PE. Today's proposed amendment would allow qualified facilities to opt out of the PE certification, but would not allow facilities that take advantage of this option to include environmentally equivalent measures in their SPCC Plans pursuant to § 112.7(a)(2). EPA is proposing this limitation on qualified facilities because EPA believes that in general, without the advantage of the expertise and knowledge that a PE brings to the development of an SPCC Plan, deviations based on environmental equivalence may not be adequate. However, as discussed below, EPA believes that allowing certain deviations may be appropriate for at least some owners of qualified facilities, without employing PE expertise. Therefore, EPA is proposing to allow certain deviations with respect to facility security and integrity testing of bulk storage containers. EPA is also proposing that qualified facilities be precluded from claiming impracticability and using contingency planning in lieu of secondary containment. EPA believes that a PE's knowledge and expertise is needed for appropriate contingency planning and other measures that must be put in place in the absence of secondary containment. Thus, requiring qualified facilities that opt out of PE certification to adhere to the current set of requirements would maintain the same standard of environmental protection provided in the existing rule. Today's proposal would not preclude a qualified facility from choosing environmentally equivalent measures or from demonstrating impracticability with respect to secondary containment requirements, although the qualified facility would need to comply with the current SPCC requirements (including the PE certification) in order to utilize the flexibility offered by PE-developed impracticability determinations and environmentally equivalent measures. In some circumstances, it may be more cost effective for a PE to prepare an SPCC Plan which utilizes environmentally equivalent measures or contingency planning, than for the owner/operator to comply with the SPCC provisions as outlined in today's proposal. Also, facilities with unconventional operations which qualify for this alternative may find that the current rule requirement for PE certification offers a more cost-effective method of achieving compliance because it provides additional flexibility through performance-based provisions. The Agency requests comments on the appropriateness of restricting the use of impracticability determinations and environmentally equivalent measures by those qualified facilities that choose the option of self-certification in order to ensure an adequate level of environmental protection. Any alternative approach presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider it for final action. c. SPCC Plan Exceptions Today's proposal for self-certification of qualified facilities would restrict the use of alternative environmentally equivalent measures for qualified facilities that elect to develop their SPCC Plan without the services of a PE. The Agency's concern is that these facilities would no longer have a trained professional, with knowledge to make site-specific equivalence determinations, reviewing and certifying their Plan. However, EPA recognizes that some of the prescriptive provisions in the current regulatory requirements may prove difficult for some qualified facilities to meet. While the Agency still believes that generally allowing use of environmentally equivalent measures in self-certified Plans is not appropriate, some degree of flexibility in two areas may be appropriate for qualified facilities. The Agency believes that it can allow qualified facilities to comply with a streamlined set of basic security measures and integrity testing requirements. The flexibility in these proposed exceptions would be analogous to the flexibility provided under § 112.7(a)(2), which allows for deviations from § 112.7(g) (security) and § 112.8(c)(6) (integrity testing) that would not be available for these facilities under today's proposal. EPA recognizes that there is no one single approach to ensure proper facility security. For example, the security requirements of fencing and lighting may not always be appropriate for sites such as a national, state or local park subject to SPCC, where the site layout may be too extensive to fence, and where perhaps the lighting of a solitary field tank would invite, rather than deter, would-be intruders. Qualified facilities, in lieu of the requirements under § 112.7(g) of this part, would be allowed to prepare a security plan that describes how the facility controls access to the oil handling, processing and storage areas; secures master flow and drain valves; prevents unauthorized access to starter controls on oil pumps; secures out-of-service and loading/unloading connections of oil pipelines; prevents acts of vandalism; and assists in the discovery of oil discharges. (Note that the security requirements in § 112.7(g) do not apply to production facilities.) Today's proposal would allow a qualified facility to develop a general security plan that provides equivalent environmental protection to the requirements in § 112.7(g). The Agency recognizes that these security provisions can be approached differently by the variety of facilities that would qualify for self-certification under today's proposal. It should be noted that this is an option and a qualified facility in compliance with the current requirements under § 112.7(g) would not be required to develop a security plan under the proposed § 112.3(g). The security plan would be required to address how the owner or operator will: • Secure all bulk storage containers, piping and oil-filled equipment from unauthorized access or acts of vandalism which could result in a discharge of oil; • Secure appurtenances (valves and/or drains) in the closed position to prevent the flow of the contents of the container which could result in a discharge of oil; • Secure pump controls in the “off” position when not in use and locate facility pump controls to prevent unauthorized access; • Secure all loading or unloading transfer connections for facility piping; and • Address whether security lighting is appropriate to both ensuring the discovery of oil discharges, and deter vandalism. This security plan would be required to be documented in the qualified facility's SPCC Plan, and would include a discussion of how the security plan will be implemented and the required training/inspections/maintenance for security related equipment and activities. The Agency recognizes the unique nature of many of the facilities that would qualify for Plan self-certification, and as such, some flexibility is appropriate so these facilities can achieve compliance with the security provisions of the current SPCC rule. The application of the SPCC security measures is often determined by the facility's geographical/spatial factors and there is no “one-size-fits-all” answer to this serious compliance requirement. For example, facilities such as farms or national parks may have unique characteristics that make compliance with the current security measures, such as potentially fencing the entire facility footprint, inappropriate. The Agency is also proposing to provide flexibility in the area of integrity testing for qualified facilities. The Agency continues to believe that owners and operators should rely on the appropriate use of industry standards for the integrity testing requirements. As EPA stated in its May 2004 letter to the Petroleum Marketers Association of America (available at http://www.epa.gov/oilspill/pdfs/PMAA_letter.pdf ), the Agency recognizes that in certain site-specific circumstances, visual inspection may be appropriate and sufficient for compliance with the integrity testing requirement. The Agency expects that the selection of particular testing methods to comply with the integrity testing requirements in the current rule and today's proposal would be based on industry inspection standards such as the Steel Tank Institute (STI) SP-001, American Petroleum Institute (API) Standard 653 and API Recommended Practice 12-R1. These industry standards address the qualifications of the tank inspector and the scope/frequency of the testing/inspections. Thus, in effect, the Agency is proposing to allow owners and operators of qualified facilities to consult and rely on industry standards or qualified container inspectors/testing personnel to determine the appropriate qualifications for tank inspectors/testing personnel and the type/frequency of integrity testing required for a particular container size and configuration. The Agency is proposing to allow qualified facilities to make this determination in accordance with industry standards without the need to develop a PE-approved environmentally equivalent deviation, as is currently required under § 112.7(a)(2). The Agency believes that allowing this flexibility for qualified facilities would increase compliance and thus environmental protection. The U.S. Small Business Administration (SBA) Office of Advocacy has suggested an additional alternative approach for allowing flexibility for integrity testing of small shop-built tanks that is based on the current SP001 standard. The current SP001 standard allows periodic visual inspections for shop-fabricated aboveground storage tanks with a total capacity of 5,000 gallons, and for which there is spill control and a continuous release detection method ( i.e. , Category 1 tanks). SBA Office of Advocacy has suggested that EPA allow periodic visual inspections for shop-fabricated aboveground storage tanks at qualified facilities, in accordance with this SP001 standard, but broaden the applicability to include shop-fabricated aboveground storage tanks that have an oil capacity of between 5,000 and 10,000 gallons. In all other respects, the SP001 standard would apply. In the SBA's view, due to the presence of spill control and a continuous release detection method (in accordance with the SP001 standard), there appears to be little likelihood for a discharge into navigable waters. The SBA Office of Advocacy also believes this additional option would make the visual inspection option available to all, and not a subset of, qualified facilities and it would benefit those qualified facilities having one tank above 5,000 gallons. EPA is not proposing the SBA additional approach for several reasons. First the SBA approach would deviate from the industry standards noted above. Second, the Agency is unaware of a technical basis to justify this deviation. EPA must justify divergence from accepted industry standards under the National Technology Transfer and Advancement Act (NTTAA) (see section VII (I) for a description of NTTAA). Third, industry standards are periodically updated and revised to account for changes in technology and to remain consistent with good engineering practice while this approach would need to be revised through rulemaking. Finally, EPA believes that by allowing for a deviation from existing industry standards, compliance would become more complex as facilities try to understand the circumstances under which this additional approach can be employed. The Agency welcomes comment on this additional approach as well as on the proposed approach for integrity testing for qualified facilities. In addition, once the modifications proposed today are promulgated, the Agency is willing to continue to work with industry tank inspection standard setting organizations to update applicable industry standards. Commenters who have information on the scope and criteria associated with the industry visual inspection standards should provide it to the standards setting organizations and their national experts for consideration. At this time, EPA is aware that a number of industry standards are changing. Nevertheless, the Agency believes that it may be appropriate to allow the flexibility of alternative integrity testing methods for these qualified facilities to be consistent with relevant industry standards. For example, visual inspections may be appropriate for the lower volume shop-built containers in certain configurations that are likely to be present at most of these qualified facilities. In the absence of an environmental equivalency provision that would allow an alternative integrity testing method for qualified facilities, the owner or operator would be required to perform visual inspections plus non-destructive testing on all classes of containers, regardless of size and configuration. Qualified facilities would have to bear the cost and burden of conducting non-destructive testing that may not be necessary under industry standards. The Agency continues to strongly recommend that facilities, qualified for self-certification or otherwise, utilize industry standards that are appropriate to their particular tank configurations in developing and conducting tank inspection and testing programs and when determining inspector/testing personnel qualifications. The Agency requests comments on whether the proposed requirements for security and integrity testing for qualified facilities provide appropriate flexibility, while maintaining environmental protection. Any alternative approach presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider it for final action. 3. Alternative Options Considered EPA considered other options for this proposal. These options included (1) providing an indefinite extension of deadlines or a suspension of all SPCC requirements; and (2) a multi-tiered structure of requirements based on a facility's total regulated storage based on the SBA proposal described in the Certain Facilities NODA published last year. The Agency also considered requiring qualified facilities to make a one-time notification to EPA they have been in operation or subject to the SPCC requirements for a period less than ten years from the time of Plan certification, and therefore could not show a ten-year clean spill history as a qualifier. All of these options would apply to a defined set of “qualified facilities”. a. Extension/Suspension Options Two additional options were considered: An indefinite compliance date extension and a suspension of all requirements. Both options would apply to a defined universe of “qualified” SPCC-regulated facilities. An indefinite extension would provide an undetermined future date for compliance with the rule. As in past extensions, all facilities that should have had a Plan as of August 16, 2002 would be required to be in compliance with the pre-2002 SPCC requirements during the interim period, including those that could potentially take advantage of today's qualified facilities proposal. A suspension of requirements for qualified facilities would provide relief for the affected universe until EPA takes further action. Both of these options would allow EPA more time to decide how to regulate qualified facilities without delaying compliance for the entire universe of SPCC-regulated facilities. In contrast, the proposed option would set forth explicit requirements for qualified facilities that reduce compliance costs within the current compliance date schedule. Because these options would only postpone the rule's requirements for qualified facilities and because the Agency believes that the modifications proposed today address the major concerns raised by facilities that store lower volumes of oil, EPA believes it appropriate to go forward with today's proposal. b. Multi-Tiered Structure A multi-tiered structure option was developed in response to comments EPA received following publication of the NODA for facilities that handle oil below a certain threshold amount (69 FR 56182, September 20, 2004) and is based on a previous analysis prepared for the SBA Office of Advocacy (Jack Faucett Associates, 2004) (hereafter “SBA proposal”). This revised regulatory structure would not only relax requirements for PE certification, but also requirements for preparing an SPCC Plan itself, although under this approach, the facility would still be responsible for complying with the substantive requirements of the SPCC rule. It includes a tiered system based on the total storage capacity of a facility, as follows: • Tier I would include facilities that handle between 1,321 and 5,000 gallons of oil (total storage capacity). These facilities would not need a written SPCC Plan (and therefore no PE certification would be needed), but would have to adhere to all other SPCC requirements. • Tier II would include facilities handling between 5,001 and 10,000 gallons of oil (total storage capacity). These facilities would be required to have a written SPCC Plan, but the Plan would not need to be certified by a PE, and a PE site visit would not be required. Standardized plans could be adopted by a facility conforming to standard design and operating procedures, without requiring PE certification. • Tier III would include the remaining SPCC-regulated facilities (total storage capacity greater than 10,000 gallons). These facilities would be required to have a written SPCC Plan certified by a PE, as currently required by the 2002 revised SPCC rule. SBA also suggested that EPA promulgate an interim final rule that excludes small facilities with storage of less than 10,000 gallons (the first two tiers of their three-tier approach) from SPCC Plan requirements, pending completion of the full notice and comment rulemaking for small facilities to develop the aforementioned tiered requirements. In order to provide environmental protection in the interim period, SBA recommended that EPA require: (1) Regular visual inspections of containers, (2) replacement or retirement of leaking tanks, and (3) compliance with the part 109 contingency plan requirements or their equivalent. In this manner (according to SBA), the EPA could address the reality of the extremely low SPCC compliance rate among small facilities, and would work toward creating a rule that small facilities would be likely to comply with. SBA stated that such a move would enhance, rather than detract from, environmental protection. This approach would provide different levels of regulatory relief based on total oil storage capacity alone, basing degree of risk on the surrogate measure facility size. Many commenters on the NODA supported this approach, which would reduce compliance costs by eliminating the PE certification requirement for facilities under 10,000 gallons. However, EPA believes that such an approach poses significant implementation problems both for the regulated community and the regulators. In particular, the Agency believes that without the owner/operator developing a Plan or documentation on how the facility will comply or expects to comply with the SPCC requirements, it will be challenging for the facility to both meet the substantive requirements (for example, spill notification, response and preparedness planning, equipment maintenance, inspection and training, secondary containment), as well as provide documentation to the regulators that the facility is in compliance. Additionally, EPA inspectors conducting site visits would have no written Plan or documentation to assess the facility's effectiveness in implementing its spill prevention strategy. Although EPA received general comments supporting this option on a conceptual level, neither the information presented in the NODA nor the comments addressed the practical application of this alternative. The Agency welcomes comments on this approach, as well as on the proposed approach, the practical application of the proposal and the rationale for its adoption. c. One-Time Notification The Agency recognizes that some facilities otherwise qualifying for owner/operator self-certification will have been in existence for fewer than ten years and will consequently be unable to demonstrate ten years without a discharge as described in § 112.1(b). Some of these facilities will have come into existence after August 16, 2002, and will not have been subject to SPCC regulation until August 18, 2006; some will be new facilities beginning operation after that date. EPA agrees with the USWAG comments that a compliant discharge history of ten years or more provides a higher degree of assurance of continuing compliance than a history of ten years or less. This is particularly true when comparing ten-year compliant facilities to otherwise qualified facilities which began operations after August 16, 2002, and whose owners or operators, to date, have not been subject to the requirements of the SPCC program, as well as start-up facilities without any operating history. EPA considered whether owners or operators of newer facilities that do not have ten years of compliance and operation without a discharge should be required to provide a one-time notification to the Agency. This notification would be submitted to the Administrator within 30 days of self-certifying a facility's SPCC Plan and would include the following information: (1) Name of the facility owner/operator; (2) mailing address of the facility owner/operator; (3) type of business conducted at the facility that is subject to the requirements of this part; (4) above-ground capacity of the facility; (5) location of the facility by street address or, if there is no street address, by longitude and latitude; and (6) year the facility began operations. These notices could be provided by either regular or electronic mail. The Agency would have the opportunity to provide some basic SPCC outreach and educational support to these owners and operators who, while otherwise demonstrating the prerequisites for self-certification, are unable to demonstrate ten years without a discharge as described in § 112.1(b). This one-time notification requirement, if adopted, would modify today's proposed qualified facilities option by increasing its burden for some facilities. EPA decided not to pursue this option because it does not differ substantively from the proposed action and the additional burden of a notification requirement was not considered necessary. The Agency welcomes comments on these or other alternatives that could serve to reduce the burden to smaller oil-handling facilities in particular, while at the same time maintaining appropriate levels of environmental protection by preventing discharges of oil. Any alternative approach presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider it for final action. B. Qualified Oil-Filled Operational Equipment EPA proposes to amend the Oil Pollution Prevention regulation (40 CFR part 112) to provide a definition of oil-filled operational equipment and an optional alternative to the general secondary containment requirements for oil-filled operational equipment that meets the qualifying criterion (hereafter referred to as “qualified oil-filled operational equipment”). The proposal would allow owners and operators of facilities with qualified oil-filled operational equipment to have the alternative 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 § 112.7(d). The owner or operator would also be 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. EPA proposes to add § 112.7(k) to define the SPCC eligibility criterion that qualified oil-filled operational equipment must meet in order to be considered qualified oil-filled operational equipment. Eligibility of a facility with oil-filled operational equipment would be determined by considering the reportable discharge history from any oil-filled operational equipment. The qualified oil-filled operational equipment criterion specifically requires that the facility had no discharges as described in § 112.1(b) from any oil-filled operational equipment in the ten years prior to the SPCC Plan certification date, or since becoming subject to 40 CFR part 112 if the facility has been in operation for less than ten years. This proposed action would provide an alternative means of SPCC compliance for this equipment; therefore, an owner/operator could choose to follow the current SPCC requirements to provide secondary containment for each piece of qualified oil-filled operational equipment in accordance with § 112.7(c) if desired. For example, oil-filled operational equipment at electrical substations is often surrounded by a gravel bed, which serves as a passive fire quench system and support for the facility grounding network and can provide a restriction to movement of any oil that may be released. Gravel beds, if designed to prevent a discharge as described in § 112.1(b) ( i.e. , drainage systems that do not serve as a conduit to surface waters) may meet the general secondary containment requirements of § 112.7(c). EPA further notes that facilities with oil-filled operational equipment located within buildings with limited drainage, which prevents a discharge as described in § 112.1(b), may already meet the requirements for general secondary containment of § 112.7(c). If so, a contingency plan for this equipment is not necessary. Ultimately, this would be a decision by the owner and/or operator. 1. Proposed Oil-Filled Operational Equipment Definition In July 2002, EPA clarified that oil-filled equipment ( i.e. , oil-filled electrical, operating, and manufacturing equipment) are not bulk storage containers and therefore are not subject to the bulk storage container provisions in § 112.8(c), including specifically sized secondary containment for bulk storage containers and integrity testing. However, as EPA stated in the preamble to the July 2002 amendments, oil-filled equipment is subject to general secondary containment requirements described in § 112.7(c), which can be provided by various means including drainage systems, spill diversion ponds, etc. EPA believes these measures provide for safety and also meet the needs of section 311(j)(1)(C) of the CWA. Though there are times when general secondary containment is practicable for oil-filled operational equipment, the Agency agreed to continue to evaluate whether the general secondary containment requirements found in § 112.7(c) should be modified for small electrical and other types of equipment which use oil for operating purposes. On September 20, 2004, EPA published a NODA which made available and solicited comments on submissions to EPA suggesting that alternate regulatory requirements for facilities with oil-filled and process equipment would be appropriate (69 FR 56184). EPA has reviewed the public comments and data submitted in response to this NODA and presents today's proposal in accordance with our intention to consider alternative containment options for electrical and operational equipment. Today's proposal defines oil-filled operational equipment as “equipment which includes an oil storage container (or multiple containers) in which the oil is present solely to support the function of the apparatus or the device. Oil-filled operational equipment is not considered a bulk storage container, and does not include oil-filled manufacturing equipment (flow-through process).” Examples of oil-filled operational equipment include, but are not limited to, hydraulic systems, lubricating systems ( e.g. , those for pumps, compressors and other rotating equipment, including pumpjack lubrication systems), gear boxes, machining coolant systems, heat transfer systems, transformers, circuit breakers, electrical switches, and other systems containing oil to enable the operation of the devices. Oil-filled operational equipment differs from bulk storage containers in several ways. Oil-filled operational equipment typically has minimal oil throughput because such equipment does not require frequent transfers of oil. Further, the oil contained in oil-filled operational equipment, such as cooling or lubricating oil, is intrinsic to the operation of the device and facilitates the function of the equipment. A leak of oil from some oil-filled operational equipment can be detected by low-level alarms and remote monitoring of the performance of the equipment. For example, the loss of oil from electrical equipment will result in the equipment ceasing to operate, which will result in a power outage. Utilities have strong economic incentives to prevent power outages, to discover and respond to an outage, and to correct the conditions that produced the outage as quickly as possible. In addition, oil-filled operational equipment is often subject to routine maintenance and inspections to ensure proper operation. Finally, oil-filled operational equipment is designed, constructed, and maintained according to specifications for its particular operation and construction materials are corrosion-resistant. However, the oil storage capacity of oil-filled operational equipment still counts towards the total oil storage capacity of the facility. The SPCC regulation defines storage capacity of a container as the shell capacity of the container. This definition applies to all oil storage containers including bulk storage containers and all oil-filled equipment. In order to determine the storage capacity of an individual piece of oil-filled operational equipment, the owner/operator would consider the total storage capacity of the piece of equipment ( i.e. , add together the capacity of multiple compartments or reservoirs of oil storage). The owner or operator must include the storage capacity of oil-filled operational equipment in order to determine applicability of the SPCC regulation to the facility. As proposed today, oil-filled manufacturing equipment (which involves a flow-through process) would not qualify for this alternative. Under the current rule, oil-filled manufacturing equipment (which is a subset of oil-filled equipment) is not defined as a bulk storage container. Oil-filled manufacturing equipment includes, for example, process vessels, conveyances such as piping associated with a process, and equipment used in the alteration, processing or refining of crude oil and other non-petroleum oils, including animal fats and vegetable oils Oil-filled manufacturing equipment is inherently more complicated than oil-filled operational equipment because it typically involves a flow-through process and is commonly interconnected through piping. For example, oil-filled manufacturing equipment receives a continuous source of oil, in contrast to the static capacity of other, non-flow-through oil-filled equipment. Today's proposal would not change any requirements for oil-filled manufacturing equipment. Oil-filled manufacturing equipment remains subject to the general SPCC requirements under § 112.7, including a demonstration of impracticability under § 112.7(d) if the SPCC Plan does not provide for secondary containment as required by § 112.7(c). The containers associated with storage of raw products, or the finished oil products are bulk storage containers and are not considered oil-filled manufacturing equipment or oil-filled operational equipment. Additionally, piping systems not associated with the alteration, processing or refining of crude oil and other non-petroleum oils, including animal fats and vegetable oils are not considered oil-filled manufacturing equipment. EPA expects the owner/operator to delineate bulk storage containers from the oil-filled manufacturing equipment in the facility SPCC Plan ( e.g. , on the facility diagram and in discussion of compliance with inspection requirements of the rule). Additionally, while oil-filled manufacturing equipment is not a bulk storage container and is therefore not subject to the frequent visual inspection requirement for bulk storage containers under § 112.8(c)(6), EPA believes that it is good engineering practice to have some form of visual inspection or monitoring for oil-filled manufacturing equipment in order to prevent discharges as described in § 112.1(b). Furthermore, it is a challenge to comply with several of the SPCC provisions (for example, requirements for security under § 112.7(g) and for countermeasures for discharge discovery under § 112.7(a)(3)(iv)) without some form of inspection or monitoring program. 2. Eligibility Criteria—Reportable Discharge History Under today's proposal, the alternative to secondary containment for qualified oil-filled operational equipment would not be available to facilities that have had a reportable discharge from any oil-filled operational equipment in the ten years prior to the SPCC Plan certification date, or since becoming subject to 40 CFR part 112 if the facility has been in operation for less than ten years. This criterion is based on a proposal submitted by USWAG, as described in the documents supplementing the September 20, 2004 NODA at 69 FR 56184. In its proposal, USWAG recognized that facilities that pose a risk, in the form of discharges of oil in quantities that are harmful (reportable under 40 CFR part 110), should not be granted regulatory relief. In general, NODA commenters expressed strong support for the USWAG proposal. 40 CFR 110.3 defines a discharge of oil “in such quantities that may be harmful to the public health, welfare, or the environment of the United States as a discharge of oil that violates applicable water quality standards; a discharge of oil that causes a film or sheen upon the surface of the water or adjoining shorelines; or a discharge of oil that causes a sludge or emulsion to be deposited beneath the surface of the water or adjoining shorelines. The Agency refers to such discharges in § 112.1(b) of the rule. Any person in charge of a facility must report any such discharge of oil from the facility to the National Response Center (NRC) at 1-800-424-8802 immediately. While EPA recognizes that past discharge history does not necessarily predict future performance, the Agency believes that discharge history can be used as a surrogate measure for a facility's ability to appropriately manage its oil. Hence, as with the “qualified facilities” proposal, EPA proposes to use this discharge history criterion to identify a facility's ability to effectively implement its SPCC Plan and prevent discharges in quantities that may be harmful. In establishing a good oil spill prevention history, a facility then qualifies for the oil spill contingency plan option offered in this proposal. Because the Agency is proposing to extend this relief to all oil-filled operational equipment, regardless of the oil storage capacity of the equipment, this criterion is critical in establishing an appropriate balance between environmental protection and burden relief by identifying those facilities which have demonstrated good spill prevention practices in the past. The Agency requests comments on the appropriateness of a reportable discharge history criterion for determining the qualifications of a facility with oil-filled operational equipment for this alternative, whether it is necessary, and whether there are other measures of a facility's effective implementation of the oil pollution prevention requirements for oil-filled operational equipment under 40 CFR part 112 that should be considered. In addition, the Agency also specifically requests comments on the proposed ten-year period by which facilities can meet the discharge history criterion. Any alternative time periods suggested must include an appropriate rationale and supporting data in order for the Agency to be able to consider them for final action. The Agency is also aware that events such as natural disasters, acts of war or terrorism, sabotage, or other calamities, beyond the control or planning ability of the facility owner or operator, may cause a reportable oil discharge. The Agency therefore requests comments on how to account for such occurrences in the discharge history criterion. 3. Proposed Requirements for Qualified Oil-Filled Operational Equipment in Lieu of Secondary Containment a. Contingency Plans and a Written Commitment of Manpower, Equipment and Materials The regulated community, particularly electrical facilities, identified secondary containment for oil-filled operational equipment as one of its major cost concerns. This sentiment was echoed in the comments submitted in response to the NODAs. With this proposal, the Agency is responding to those concerns by providing targeted relief without compromising on environmental protection. EPA believes that secondary containment may be often impracticable for oil-filled operational equipment due to inherent design and safety considerations, as well as site configuration. The oil associated with oil-filled operational equipment remains inside the equipment and transfers do not occur regularly; for oil-filled electrical equipment (e.g., transformers) transfers may occur infrequently, if at all. Operational equipment is designed, constructed, and maintained according to specifications for its particular operation and construction materials are corrosion-resistant. The complexity of the equipment and the nature of the use of this equipment may not lend itself to traditional bulk storage containment methods and thus flexibility is appropriate in this area and may improve compliance with oil pollution prevention measures. The proposed amendments to § 112.7 would give a facility with qualified oil-filled operational equipment the option of implementing an oil spill contingency plan and written commitment of manpower, equipment, and materials required to expeditiously control and remove any quantity of oil discharged that may be harmful in lieu of secondary containment for this equipment, without having to make an impracticability determination for each piece of equipment. It should be noted that the use of a contingency plan does not relieve the owner/operator of liability associated with an oil discharge to navigable waters or adjoining shorelines that violates the provisions of 40 CFR part 110. In the preamble to the 2002 amendments, EPA discusses how any facility which makes a determination of impracticability and has submitted a Facility Response Plan (FRP) under § 112.20 is exempt from the contingency planning requirement because such a response plan is more comprehensive than a contingency plan following 40 CFR part 109. The Agency believes that this should also apply to a facility with qualified oil-filled operational equipment which would choose to utilize contingency planning in lieu of secondary containment in accordance with today's proposal. If such a facility has already developed an FRP to comply with § 112.20, then it would not need to also develop a contingency plan in accordance with 40 CFR part 109 for the qualified oil-filled operational equipment. Since, by definition, oil-filled operational equipment is not considered a bulk storage container, the facility owner or operator is not required to comply with the bulk storage requirements under § 112.8(c) or to conduct both periodic integrity testing of the containers and periodic integrity and leak testing of the valves and piping as described under § 112.7(d). However, EPA believes that inspections or monitoring are important when there is no secondary containment in place. Therefore, EPA is proposing to require facilities with qualified oil-filled operational equipment choosing the proposed alternative to secondary containment to develop and implement an inspection or monitoring program, as further discussed in section B.3.b. of this section of the preamble. Since this proposal for qualified oil-filled operational equipment would provide an optional method of SPCC compliance, a facility with such equipment could choose to follow the current SPCC requirements and provide general secondary containment in accordance with § 112.7(c) for this equipment if desired. Ultimately, this would be a decision of the owner and/or operator. Facilities with qualified oil-filled operational equipment that choose the proposed alternative to secondary containment and that subsequently experience a discharge would not automatically lose eligibility for today's proposed relief. Owners/operators of facilities which discharge oil in quantities that may be harmful from oil-filled operational equipment should re-evaluate the effectiveness of the SPCC Plan (specifically the contingency plan, written commitment of resources and inspections/monitoring alternative discussed in today's proposal) and determine the need for secondary containment measures in lieu of contingency planning. Additionally, the Regional Administrator (RA) may determine that a facility is no longer eligible to have a contingency plan in lieu of secondary containment without making an impracticability determination, and such facilities may be required to amend their Plans to provide secondary containment for their oil-filled operational equipment. The RA has the authority to require SPCC Plan amendments under § 112.4. Section 112.4(a) requires a facility that has discharged more than 1,000 gallons of oil in a single discharge as described in 40 CFR part 110, or that discharged more than 42 gallons of oil in each of two discharges as described in 40 CFR part 110 in any 12-month period to submit information to the RA within 60 days of the date of the discharge. As per § 112.4(d), the RA has the authority to require the facility to amend its SPCC Plan in order to prevent and contain discharges; e.g., the RA may require a facility to install secondary containment for oil-filled operational equipment. In addition, a discharge of oil under 40 CFR part 110 that does not trigger the reporting requirements of § 112.4(a) must still be reported to the National Response Center. EPA also receives copies of the NRC reports and has the authority under § 112.1(f) to require a facility to prepare and implement an SPCC Plan or any applicable part of a Plan. Thus, the RA may require a Plan, partial Plan, or amendments to the Plan to achieve full compliance with the rule, as deemed appropriate to prevent further discharges in quantities that may be harmful. b. Inspections or Monitoring Program Facility owners or operators that wish to take advantage of this proposed alternative would be required to develop an appropriate set of procedures for inspections or a monitoring program for qualified oil-filled operational equipment. For facilities that rely on contingency planning in lieu of secondary containment for qualified oil-filled operational equipment, discharge discovery by inspection or monitoring is of paramount importance for effective and timely implementation of the contingency plan. An inspection or a monitoring program would ensure that facilities are alerted quickly of equipment failures and/or discharges. A written description of the inspection or monitoring program would be required to be included in the SPCC Plan. Under the existing requirement in § 112.7(e), the owner or operator would be required to keep a record of inspections and tests, signed by the appropriate supervisor or inspector, for a period of three years. Records of inspections and tests kept under usual and customary business practices suffice (e.g., records of inspections and tests required by this rule may be maintained in electronic or any other format which is readily accessible to the facility and to EPA personnel). While oil-filled operational equipment is not a bulk storage container and is therefore not subject to the frequent visual inspection requirement for bulk storage containers under § 112.8(c)(6), EPA believes that it is good engineering practice to have some form of visual inspection or monitoring for oil-filled operational equipment in order to prevent discharges as described in § 112.1(b). Additionally, it is a challenge to comply with several of the SPCC provisions (for example, requirements for security under § 112.7(g) and for countermeasures for discharge discovery under § 112.7(a)(3)(iv)) without some form of inspection or monitoring program. A facility owner/operator must be able to quickly detect a discharge from qualified oil-filled operational equipment in order for a contingency plan to be effective. Oil-filled operational equipment may be frequently monitored by employees tending to the operation, and in such a case, discharges of oil would be noticed quickly. For many types of operational equipment, particularly oil-filled electrical equipment, releases of oil rapidly decrease the functionality of the equipment—for oil-filled electrical equipment, loss of dielectric fluid leads to equipment failure and an interruption of electric power transmission. The need for equipment reliability assures prompt detection of releases of oil, enhancing the probability of a prompt response action. Therefore, in lieu of secondary containment, today's proposal for qualified oil-filled operational equipment includes the requirement for a facility owner/operator to establish and document an inspection or monitoring program, in addition to the preparation of a contingency plan, and a written commitment of manpower, equipment, and materials to expeditiously control and remove oil discharged. The Agency requests comments on the appropriateness of this requirement as a qualification for this alternative, and whether there are other measures that a facility could take to ensure that a contingency plan is activated in a timely manner upon equipment failure or discharge. The Agency also requests comments on whether there are other requirements that should be added for facilities with oil-filled operational equipment to be able to establish and document an inspection or monitoring program, use a contingency plan, and provide a written commitment of manpower, equipment and materials in lieu of secondary containment for qualified oil-filled operational equipment. Any alternative approach presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider it for final action. Alternative Options Considered EPA considered alternative approaches to address streamlined requirements for small oil-filled operational equipment. One option was similar to the qualified facilities proposal, in which eligibility of a facility with oil-filled operational equipment would be determined by considering capacity thresholds and reportable discharge history from any oil-filled operational equipment. Another option would call for a tiered set of requirements for electrical and other oil-filled operational equipment. EPA also considered options similar to those presented for the qualified facilities proposal: (1) providing an indefinite extension of the Plan revision and implementation dates for certain types of oil-filled operational equipment; and (2) suspending all SPCC requirements for certain types of oil-filled operational equipment. a. Capacity Threshold Qualifier The Agency considered an alternative approach based on various levels of aggregate oil storage capacity at a facility for determining which facilities would be eligible for reduced burden as qualified oil-filled operational equipment. EPA considered limiting the proposed option by including two alternative storage capacity thresholds from which the owner/operator may determine the equipment or facility's eligibility: (1) The storage capacity of an individual piece of oil-filled operational equipment is 1,320 gallons or less, regardless of the facility's total oil-filled operational equipment aggregate capacity; or (2) the aggregate oil-filled operational equipment storage capacity at the facility is 10,000 gallons or less. EPA also considered an alternative range of thresholds for both an individual piece of oil-filled operational equipment (ranging from 2,640 to 5,000 gallons) and for the facility aggregate capacity of 20,000 gallons in order to provide a greater degree of burden reduction than the alternative thresholds considered by EPA. In determining potential threshold capacities, EPA considered current thresholds in the rule, as well as proposals by industry. This was intended to limit this relief to small pieces of oil-filled operational equipment or to facilities storing smaller aggregate volumes of oil in oil-filled operational equipment. The total facility oil-filled operational equipment storage capacity threshold addresses the co-location of oil-filled operational equipment within a facility. The Agency decided not to propose a threshold criterion because we believe this equipment is unique and different from bulk storage containers and manufacturing equipment (flow-through process) such that the spill history alone suffices as a qualifying criterion to determine eligibility. The Agency was also concerned with the limited amount of information provided in response to the NODA. The data submitted in response to the NODA was primarily from the electrical industry and the Agency has no information describing the types of oil-filled operational equipment, capacities and distribution for other industries. Additionally, we have limited specific information on the various sizes of oil-filled electrical equipment to assist in establishing a threshold for an individual piece of equipment. The Agency seeks comments on whether eligibility for qualified oil-filled operational equipment status should be based on a specific level of aggregate oil-filled operational equipment storage capacity at a given facility. The Agency seeks comments on whether a threshold criterion achieves an appropriate balance of facility burden and environmental protection for oil-filled operational equipment. Any available data specific to either the capacity, location, or size distribution of oil-filled operational equipment within a facility or within a specific industry sector would be useful in Agency deliberations for final rulemaking. Comments specific to establishing a threshold criterion for oil-filled operational equipment should include supporting data that: (1) Demonstrates why the suggested volume threshold is preferred; and (2) estimates the number (or percentage) of facilities that would be eligible for qualified oil-filled operational equipment status. Any alternative approach presented should include an appropriate rationale and supporting data in order for the Agency to be able to consider it for final action. b. Multi-Tiered Structure The tiered structure option was considered in response to comments EPA received following publication of a Notice of Data Availability for oil-filled equipment (69 FR 56184, September 20, 2004) and is based on a previous proposal put forth by USWAG that focused on electrical equipment. A central element of this option would allow the facility owner or operator to define each discrete unit of this type of oil-filled equipment as a facility. This option would also establish three tiers for regulated onshore oil-filled operational equipment based on the storage capacity of the equipment. Individual pieces of oil-filled operational equipment with an oil storage capacity of 1,320 gallons or less (Tier 1) would have been exempt from all SPCC requirements. For individual pieces of oil-filled operational equipment with a capacity greater than 1,320 but less than 20,000 gallons and which meet additional qualifying criteria (Tier II), facility owners and operators would have the option of preparing a contingency plan in lieu of an SPCC Plan. Such an approach would have exempted a significant portion of the regulated universe with oil-filled operational equipment from the development of an SPCC Plan entirely and instead would only need to develop a contingency plan and a written commitment of manpower, equipment and materials in the event of a discharge. Tier III would require that all other oil-filled operational equipment with capacities greater than 20,000 gallons for an individual piece of equipment be required to comply with the current SPCC rule. Although the Agency agrees that some regulatory modifications are appropriate for facilities containing oil-filled operational equipment, there is still a reasonable potential for discharge from this equipment and coverage by some type of SPCC Plan is warranted. The Agency believes this is true even for facilities composed entirely of oil-filled operational equipment. EPA also has concerns about the suggestion to allow facility owners and operators to define each piece of oil-filled equipment as a separate facility because of the potential for greater rule complexity, implementation questions and confusion across the wide variety of facilities covered by the SPCC rule. For example, the Agency may have to define and develop criteria that would be used by the facility owner or operator to determine which equipment is a separate facility, which is not, and how the elements of a facility plan would address these differences. Uncertainty and confusion about the definition of a facility could lead to a greater lack of compliance and the potential for greater environmental harm. c. Extension/Suspension Options EPA could propose an indefinite extension to the compliance dates, similar to the previous extensions already granted, that would apply to oil-filled operational equipment. This action would allow EPA more time to decide how to regulate oil-filled operational equipment without delaying compliance for the entire universe of SPCC-regulated facilities and equipment. However, the extension would be for a yet-to-be-determined length of time, and for an unspecified set of requirements. Since so many facilities have oil-filled operational equipment, if changes to these requirements are delayed, a significant number of facilities might have to modify their existing Plans more than once to accommodate future rule changes. As with past extensions, EPA would continue to require that oil-filled operational equipment comply with pre- 2002 SPCC requirements during the interim period at facilities that should have had an SPCC Plan as of August 16, 2002, providing no immediate relief. A suspension of all requirements for oil-filled operational equipment would provide immediate relief until further notice and provided EPA with more time to decide how to regulate this equipment. The Agency is concerned that this option provides no environmental protection during the time that new requirements are developed. EPA welcomes comments on these or other alternatives that could reduce the burden at facilities with oil-filled operational equipment, while maintaining appropriate levels of environmental protection. The Agency is also interested in comments related to the application of the USWAG proposal to other types of oil-filled operational equipment. Any alternative approaches presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider them for final action. Qualified Facilities and Qualified Oil-Filled Operational Equipment Overlap Some facilities would meet the criteria for both qualified facilities and qualified oil-filled operational equipment. Such facilities would be able to benefit from both of the burden-reduction options proposed under today's action. The owner or operator could choose to develop a contingency plan and a written commitment of manpower, equipment and materials in lieu of secondary containment for qualified oil-filled operational equipment. Since no impracticability determination would be required for qualified oil-filled operational equipment, the owner or operator could self-certify his/her SPCC Plan and would not be required to have a PE develop and certify the contingency plan for the qualified oil-filled operational equipment. The responsibility of preparing a contingency plan and identifying the necessary equipment, materials and manpower to implement the contingency plan would fall on the owner or operator of the qualified facility. C. Motive Power There are some motive power containers already exempt from the SPCC requirements based on the rule exemption for containers with an oil storage capacity of less than 55 gallons. However, there are certain motor vehicles (including aircraft) that contain oil in capacities greater than or equal to 55 gallons solely for the purpose of providing fuel for propulsion, or solely to facilitate the operation of the vehicle. The concept of “motive power” is not addressed in the SPCC regulations, but the EPA-DOT MOU in Appendix A to 40 CFR part 112 specifically refers to the transportation of oil, not to transportation in the general sense. As a result, oil storage containers with a capacity greater than 55 gallons used for motive power fall under the SPCC rule and secondary containment and other SPCC requirements apply. However, EPA never intended to regulate motive power containers on buses, sport utility vehicles, small construction vehicles, aircraft and farm equipment, or facilities or locations such as heavy equipment dealers, commercial truck dealers, or certain parking lots that may be subject to the SPCC requirements (including bulk storage containment, inspection, and overfill protection) solely because of the presence of motive power containers. Nor does EPA intend to require facilities otherwise subject to the SPCC rule to include motive power containers in their Plans. 1. Definition of Motive Power EPA proposes to amend the Oil Pollution Prevention regulation (40 CFR part 112) to exempt motive power containers, defined as “onboard bulk storage containers used solely to power the movement of a motor vehicle, or ancillary onboard oil-filled operational equipment used solely to facilitate its operation.” This definition is intended to describe containers such as the fuel tanks that are used solely to provide fuel for a motor vehicle's movement or the hydraulic and lubrication operational oil-filled containers used solely for other ancillary functions of a motor vehicle. This definition would not include transfers of fuel or other oil into motive power containers at an otherwise regulated facility, or a bulk storage container mounted on a vehicle for any purpose other than powering the vehicle itself, for example, a tanker truck or refueler. The definition of motive power containers would not include oil drilling or workover equipment. Specifically, it would not apply to the drilling or workover rigs themselves; however, other earthmoving equipment (such as a bulldozer, trucks, or earth-moving equipment) located at a drilling or workover facility would be included in the scope of the definition. Similarly, seismic exploration vehicles located at, for example, oil and gas drilling, workover and production facilities, would be included in the scope of the definition of motive power. The Agency is seeking comments on the proposed definition of motive power containers or if there are any other definitions for “motive power” that would be more suitable. Any alternative approach presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider it for final action. 2. Proposed Exemption This proposed rule amendment would exempt motive power containers, as defined above, from SPCC rule applicability through a proposed additional paragraph under the general applicability section, § 112.1(d). Furthermore, these storage containers would not be counted toward facility capacity under § 112.1(d)(2). EPA recognizes that there is a potential for an oil discharge as described in § 112.1(b) from motive power containers, such as from a breach in the fuel storage container, from an overfill event, or from a rupture of oil-filled operational equipment such as a hydraulic line on heavy construction equipment. EPA has the authority, under 311(j)(1)(C) of the CWA, to impose requirements to prevent oil discharges from motive power containers. The Regional Administrator has the option under § 112.1(f) to require facilities with motive power containers to prepare and implement an SPCC Plan or any applicable part, if a determination is made that it is necessary in order to prevent a discharge of oil into waters of the United States. EPA notes that although this proposal provides the fuel tanks and ancillary oil-filled operational equipment on motor vehicles with an exemption from SPCC requirements, oil transfer activities occurring within an SPCC covered facility would continue to be regulated. An example of such an activity would be the transfer from an onsite tank via a dispenser to motive power containers. This transfer activity is subject to the general secondary containment requirements of § 112.7(c), but is not subject to the requirements of § 112.7(h), because it does not occur across a loading/unloading rack. Regulating a transfer between unregulated motive power containers and a regulated tank is required by § 112.1(b), which requires that the SPCC rule apply to owners or operators of facilities that transfer oil and oil products. Another example would be an airport mobile refueler at an SPCC-regulated airport that transfers oil to motive power containers or to an aircraft. That transfer activity would again be subject to the general secondary containment requirements of § 112.7(c), but not subject to the requirements of § 112.7(h), again because it does not generally occur across a loading/unloading rack. An onboard bulk storage container that supplies oil for the movement of a vehicle or operation of onboard equipment, and at the same time is used for the distribution or storage of this oil is not subject to this proposed exemption. For example, a mobile refueler that has an onboard bulk storage container used to distribute fuel to other vehicles on a site may also draw its engine fuel (for propulsion) from that container. Because EPA continues to consider bulk storage containers mounted on vehicles or towed by a vehicle (such as a typical cargo tanker truck) subject to certain transfer-related SPCC requirements, these containers are not subject to today's proposed exemption. As noted above, the exemption applies only to onboard bulk storage containers used solely to provide motive power or to facilitate the operation of the vehicle. EPA is not extending the exemption for motive power containers to oil drilling and workover equipment, including rigs. The Agency believes that due to the unique nature of oil drilling and workover rig operations and the large amounts and high flow rates of oil associated with these activities, it would not be appropriate or environmentally sound to exempt them from the SPCC requirements, and thus they should remain subject to 40 CFR part 112. The purpose of offering the exemption is to offer relief for a particular set of equipment ( e.g. , automobiles) that may be present at an otherwise regulated SPCC facility, and not to offer relief for facilities that may be mobile and move from place to place as in the case of a drilling or workover rig. Although drilling and workover equipment, including rigs, are not exempt, other motive power equipment located at drilling or workover facilities ( e.g. , trucks, automobiles, bulldozers, seismic exploration vehicles or other earth-moving equipment) would be exempted. The agency believes that the general protection and the spill response and planning activities provided at an otherwise regulated SPCC facility will help the facility to address the spills associated with these motive power containers. However, the specific provisions (such as blowout prevention) which are present in the current rule for drilling or workover rigs, need to be preserved to maintain an adequate level of environmental protection for these unique activities. Therefore, an exemption for drilling and workover equipment, including rigs, is inappropriate. 3. Alternative Options Considered EPA considered other options to address motive power containers greater than 55 gallons in size. These options included: (1) Exemption of all motive power containers, except motive power containers on aircraft and mining equipment, which would be subject to the general requirements under § 112.7; (2) exemption of all motive power containers below a certain gallon threshold, with containers above this threshold remaining subject to the general requirements under § 112.7; and (3) exclusion of motive power containers only from the facility storage capacity calculation and bulk storage container requirements. a. Equipment-Based Motive Power Exemption EPA could choose to exempt motive power containers, except containers on aircraft and mining equipment, from the requirements of 40 CFR part 112. The majority of motive power containers would be exempt from the SPCC rule. EPA would require that the containers on aircraft and mining equipment be covered by the SPCC requirements because these containers typically have much larger volume than other motive power containers and potentially pose a greater threat to the environment in the event of a discharge as described in 112.1(b). However, in the context of motive power containers, there is no information on the degree of likelihood of a discharge from motive power containers of different oil storage capacities nor is there data available to EPA specific to mining and aircraft equipment discharges that would justify this option. Therefore, the Agency chose not to propose this option. b. Threshold-Based Motive Power Exemption Another option considered was to exempt motive power containers with a capacity below a certain threshold, and requiring containers with a capacity above the established threshold to have appropriate containment under § 112.7(c). Those motive power containers included in the rule would only be required to have general containment, and would be exempt from all other requirements in §§ 112.7 and 112.8(c). However, EPA rejected this option because it has no basis for choosing an appropriate threshold for these containers and there is no data that clearly supports any specific quantity. In addition, it would still present implementation problems for those motive power containers that were subject to the regulation. c. Exclusion From Storage Capacity Calculation EPA could exclude motive power containers from the storage capacity determination at a regulated facility and from the definition of bulk storage container to clarify that these containers are not counted towards the 1,320 gallon aboveground oil storage threshold for the regulation. Nevertheless, the facility would have to consider these containers in their overall facility SPCC Plan. Although motive power containers would not be considered bulk storage containers, they would be subject to the general requirements of the rule under § 112.7, including the provision for secondary containment. The facility SPCC Plan would have to identify the presence of motive power containers on-site, in addition to their reasonable potential for discharge as per § 112.7(b). This option is more complex for the regulated community and is not a clear exemption of motive power containers. Each of these alternative options was rejected because they did not address the implementation issues with regulating motive power containers under the SPCC requirements. The Agency welcomes comments on these or other alternatives that could serve to reduce the burden for facilities with motive power containers, while at the same time maintaining appropriate levels of environmental protection. Any alternative approaches presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider them for final action. D. Airport Mobile Refuelers Airport mobile refuelers are vehicles that are used on an airport to refuel aircraft and ground service equipment. Their onboard bulk storage containers are used to transport and transfer fuel and are subject to the SPCC rule because they are containers used to store oil prior to use, while being used, or prior to further distribution in commerce. As such, they are subject to all applicable SPCC rule provisions, including the secondary containment provisions of § 112.8(c)(2) (applicable to all bulk storage containers) and § 112.8(c)(11) (applicable more specifically to mobile/portable bulk storage containers). These provisions require a secondary means of containment, such as a dike or catchment basin, sufficient to contain the capacity of the largest single compartment or container with sufficient freeboard to contain precipitation. Regulated community members in the aviation sector have expressed concern that requiring sized secondary containment for airport mobile refuelers is not practicable for safety and security reasons. They argue that requiring refuelers to park in specially designed secondary containment areas located within an airport's aircraft operations area could create a safety and security hazard because it entails grouping the vehicles or placing impediments in the operations area. In addition, they claim that requiring mobile refuelers to return to containment areas located within the airport's tank farm between refueling operations may increase the risk of accidents (and therefore accidental oil discharge), as the vehicles would travel with increased frequency through the busy aircraft operations area. They also claim that providing secondary containment for mobile refuelers during airport operations presents inherent difficulties and point to controls on design, inspection, maintenance and operation of mobile refuelers imposed by the Federal Aviation Administration's Advisory Circulars. For example, the storage containers on the mobile refuelers must be manufactured to U.S. DOT-406 specifications for pressure vessels (49 CFR 178.346). EPA is aware that certain airports subject to FAA's regulations at 14 CFR part 139 require certification by the FAA Administrator or his delegated agent. As part of this certification, the Agency understands that compliance with Uniform Fire Code requirements, among other requirements in 14 CFR part 139, must be detailed in the Airport Certification Manual to obtain FAA approval and thus an Airport Operating Certificate per part 139. The Agency understands that the applicable Uniform Fire Code includes National Fire Protection Association's (NFPA) 30, Flammable and Combustible Liquids Code , NFPA 407, Standard for Aircraft Fuel Servicing and NFPA 415, Standard on Airport Terminal Buildings, Fueling Ramp Drainage , and Loading Walkways . In particular, NFPA 407 requires that aircraft fuel servicing vehicles and carts shall be positioned so that a clear path of egress from the aircraft for fuel servicing vehicles shall be maintained [5.12.1]. Further, in NFPA 415, the code specifically states that in no case shall the design of a drainage system of any aircraft fueling ramp allow fuel to collect on the aircraft fueling ramp or adjacent ground surfaces where it constitutes a fire hazard [5.1.4]. As such, EPA believes that subjecting mobile airport refuelers to the specifically sized secondary containment requirements at § 112.8(c)(2) and (11) would directly conflict with the Uniform Fire Code applicable to fuel handling at airports. EPA believes, however, that these bulk storage containers should remain subject to the general secondary containment requirements at § 112.7(c) as this provision affords sufficient flexibility to the owner/operator and certifying PE to select a spill prevention method that would not conflict with the applicable Uniform Fire Code. Thus, EPA is proposing to exempt airport mobile refuelers from the specifically sized secondary containment requirements for bulk storage containers in § 112.8 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-23917. Public record. Not legal advice.