Oil Pollution Prevention and Response; Non-Transportation-Related Onshore and Offshore Facilities

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 17, 2002 (Volume 67, Number 137)]
[Rules and Regulations]
[Page 47041-47090]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy02-29]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[FRL-7241-5]
RIN 2050-AC62

Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency or we)
is amending the Oil Pollution Prevention regulation promulgated under
the authority of the Clean Water Act. This rule includes requirements
for Spill Prevention, Control, and Countermeasure (SPCC) Plans, and for
Facility Response Plans (FRPs). The final rule includes new subparts
outlining the requirements for various classes of oil; revises the
applicability of the regulation; amends the requirements for completing
SPCC Plans; and makes other modifications. The final rule also contains
a number of provisions designed to decrease regulatory burden on
facility owners or operators subject to the rule, while preserving
environmental protection. We expect that today's rule will reduce the
paperwork burden associated with SPCC requirements by approximately
40%. We have also made the regulation easier to understand and use.

DATES: This rule is effective August 16, 2002.

ADDRESSES: The official record for this rulemaking is located in the
Superfund Docket at 1235 Jefferson Davis Highway, Crystal Gateway 1,
Arlington, Virginia 22202, Suite 105. The docket numbers for the final
rule are SPCC-1P, SPCC-2P, and SPCC-7. The record supporting this
rulemaking is contained in the Superfund Docket and is available for
inspection by appointment only, between the hours of 9 a.m. and 4 p.m.,
Monday through Friday, excluding legal holidays. You may make an
appointment to review the docket by calling 703-603-9232. You may copy
a maximum of 100 pages from any regulatory docket at no cost. If the
number of pages exceeds 100, however, we will charge you $0.15 for each
page after 100. The docket will mail copies of materials to you if you
are outside of the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Oil Program
Center, U.S. Environmental Protection Agency, at 703-603-8769
(fleischman.hugo@epa.gov); or the RCRA/Superfund Hotline at 800-424-
9346 (in the Washington, DC metropolitan area, 703-412-
9810)(epahotline@bah.com). The Telecommunications Device for the Deaf
(TDD) Hotline number is 800-553-7672 (in the Washington, DC
metropolitan area, 703-412-3323). You may wish to visit the Oil
Program's Internet site at www.epa.gov/oilspill.

SUPPLEMENTARY INFORMATION: The contents of this preamble are as
follows:

I. Entities Affected by This Rule
II. Introduction
A. Statutory Authority
B. Background of This Rulemaking
III. Summary of Major Rule Provisions
IV. Discussion of Issues
A. Reorganization of the Rule
B. Plain Language Format
C. ``Should to Shall to Must'' Clarification
D. Professional Engineers (PEs)
1. State Registration
2. PEs Employed by the Facility
3. Completion of Testing
4. Site Visits
E. Electrical Facilities and Other Operational Users of Oil
F. Discretionary Provisions
G. Design Capabilities of Drainage Systems, Other than
Production Facilities
H. Compliance Costs
I. Contingency Planning and Notification
J. Reproposal
K. Industry Standards
V. Section by Section Analysis (Includes: Background, Comments, and
Response to Comments)
VI. Summary of Supporting Analyses
A. Executive Order 12866--OMB Review
B. Executive Order 12898--Environmental Justice
C. Executive Order 13045--Children's Health
D. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
E. Executive Order 13132--Federalism
F. Executive Order 13211--Energy Effects
G. Regulatory Flexibility Act
H. Unfunded Mandates Reform Act
I. Paperwork Reduction Act
J. National Technology Transfer and Advancement Act
K. Congressional Review Act

I. Entities Affected by This Rule

Entities Potentially Regulated by this Rule Include:

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CATEGORY NAICS Codes
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Crop and Animal Production.......... 111-112.
Crude Petroleum and Natural Gas 211111.
Extraction.........................
Coal Mining, Non-Metallic Mineral 2121/2123/213114/213116.
Mining and Quarrying...............
Electric Power Generation, 2211.
Transmission, and Distribution.....
Heavy Construction.................. 234.
Petroleum and Coal Products 324.
Manufacturing......................
Other Manufacturing................. 31-33.
Petroleum Bulk Stations and 42271.
Terminals..........................
Gasoline Stations/Automotive Rental 4471/5321.
and Leasing........................
Heating Oil Dealers................. 454311.
Transportation (including 482-486/488112-48819/4883/48849/
Pipelines), Warehousing, and 492-493/71393.
Marinas............................
Elementary and Secondary Schools, 6111-6113.
Colleges...........................
Hospitals/Nursing and Residential 622-623.
Care Facilities....................
------------------------------------------------------------------------

``NAICS'' refers to the North American Industry Classification
System, a method of classifying various facilities. The NAICS was
adopted by the United States, Canada, and Mexico on January 1, 1997 to
replace the Standard Industrial Classification (SIC) code. This table
is not intended to be exhaustive, but rather provides a guide for
readers regarding entities likely to be regulated by this action. It
lists the types of entities of which we are now aware that could
potentially be regulated by this action. Other types of entities not
listed in the table could also be regulated. To determine whether your
facility could be regulated by this action, you should carefully
examine the criteria in Secs. 112.1 and 112.20 of title 40 of the Code
of Federal Regulations and of today's rule, which explain the
applicability of the rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.

[[Page 47043]]

II. Introduction

A. Statutory Authority

Section 311(j)(1)(C) of the Clean Water Act (CWA or Act), 33 U.S.C.
1251, 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 has delegated the authority to regulate non-
transportation-related onshore facilities under section 311(j)(1)(C) of
the Act to the U.S. Environmental Protection Agency. Executive Order
12777, section 2(b)(1), (56 FR 54757, October 22, 1991), superseding
Executive Order 11735, 38 FR 21243. By this same Executive Order, the
President has delegated similar authority over transportation-related
onshore facilities, deepwater ports, and vessels to the U.S. Department
of Transportation (DOT), and authority over other offshore facilities,
including associated pipelines, to the U.S. Department of the Interior
(DOI). A Memorandum of Understanding (MOU) among EPA, DOI, and DOT
effective February 3, 1994, has redelegated the responsibility to
regulate certain offshore facilities located in and along the Great
Lakes, rivers, coastal wetlands, and the Gulf Coast barrier islands
from DOI to EPA. See Executive Order 12777, section 2(i) regarding
authority to redelegate. The MOU is included as Appendix B to 40 CFR
part 112. An MOU between the Secretary of Transportation and the EPA
Administrator, dated November 24, 1971 (36 FR 24080), established the
definitions of non-transportation-related and transportation-related
facilities. The definitions from the 1971 MOU are included as Appendix
A to 40 CFR part 112.

B. Background of This Rulemaking

Part 112 of 40 CFR outlines the requirements for both the
prevention of and the response to oil spills. The prevention aspect of
the rule requires preparation and implementation of Spill Prevention,
Control, and Countermeasure (SPCC) Plans. This rulemaking affects SPCC
and FRP requirements. The SPCC requirements were originally promulgated
on December 11, 1973 (38 FR 34164), under the authority of section
311(j)(1)(C) of the Act. The regulation established spill prevention
procedures, methods, and equipment requirements for non-transportation-
related onshore and offshore facilities with aboveground storage
capacity greater than 1,320 gallons (or greater than 660 gallons in a
single container), or completely buried oil storage capacity greater
than 42,000 gallons. Regulated facilities were also limited to those
that, because of their location could reasonably be expected to
discharge oil in harmful quantities into the navigable waters of the
United States or adjoining shorelines.
We have amended the SPCC requirements a number of times, and those
amendments are described in an October 22, 1991 Federal Register
proposed rule. 56 FR 54612. In the October 1991 document, in addition
to the description of past amendments, EPA proposed new revisions that
involved changes in the applicability of the regulation and the
required procedures for the completion of SPCC Plans, as well as the
addition of a facility notification provision. The proposed rule also
reflected changes in the jurisdiction of section 311 of the Act made by
amendments to the Act in 1977 and 1978. We have finalized some of those
proposed revisions, with modifications, in this rule.
On February 17, 1993, we again proposed clarifications of and
technical changes to the SPCC rule. We also proposed facility response
planning requirements to implement the Oil Pollution Act of 1990 (OPA).
58 FR 8824. The proposed changes to the SPCC rule included
clarifications of certain requirements, response plans for facilities
without secondary containment, prevention training, and methods of
determining whether a tank would be subject to brittle fracture. We
promulgated the facility response planning requirements of the 1993
proposal on July 1, 1994, (59 FR 34070), and they are codified at 40
CFR 112.20-112.21. We have finalized the proposed 1993 prevention
requirements, with modifications, in this rule.
In 1996, EPA completed a survey and analysis of SPCC facilities.
The survey was designed to ensure that data on the sampled facilities
could be statistically extrapolated to the nation as a whole for all
facilities regulated by EPA's SPCC regulation. We used the results of
that survey and analysis to develop a proposed rule affecting SPCC
facilities on December 2, 1997. 62 FR 63812. The survey and analytical
results are part of the administrative record for this rulemaking.
The purpose of the 1997 proposal was to reduce the information
collection burden imposed by the prevention requirements in the SPCC
rule and the FRP rule without creating an adverse impact on public
health or the environment. We also proposed changes in information
collection requirements for facility response plans, but have withdrawn
them in this rulemaking. Those changes would have affected the
calculation of storage capacity at certain facilities for response plan
purposes. 62 FR 63816. However, see new Sec. 112.1(d)(6). The 1997 SPCC
proposals, as modified, are finalized in this rule.
On April 8, 1999, we proposed revision to facility response plan
requirements. 64 FR 17227. The main purpose of the proposal was to
provide a more specific methodology for planning response resources
that can be used by an owner or operator of a facility that handles,
stores, or transports animal fats and vegetable oils. We finalized that
proposal on June 30, 2000. 65 FR 40776. The final rule included four
new definitions that are applicable to all of part 112.

III. Summary of Major Rule Provisions

For your convenience, we have developed a table showing a summary
of the major revisions in this rule. The table does not always use
exact rule text, but summarizes rule provisions. For exact rule text,
see 40 CFR part 112 (2000) for text of the current rule; for exact text
of the revised rule, see the rule text following this preamble.

Summary of Major Revisions to the Current SPCC Rules
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Current SPCC rule Revised SPCC rule Comment
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Section 112.1: General Applicability
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[[Page 47044]]

Sec. 112.1(b): Explains Sec. 112.1(b): Sec. 112.1(b): The
that the SPCC rule applies Explains that the revised rule
to owners or operators of SPCC rule applies clarifies that
facilities that drill, to owners or users of oil are
produce, gather, store, operators of also subject to the
process, refine, transfer, facilities that rule. It also
distribute, or consume oil drill, produce, expands the scope
and oil products, and might gather, store, of the rule to
reasonably be expected to process, refine, conform with the
discharge oil in harmful transfer, expanded
quantities into or upon distribute, use, or jurisdiction in the
navigable waters of the consume oil and oil amended Clean Water
United States or adjoining products, and might Act.
shorelines. reasonably be
expected to
discharge oil in
quantities that may
be harmful into or
upon navigable
waters of the
United States or
adjoining
shorelines, or
waters of the
contiguous zone, or
in connection with
activities under
the Outer
Continental Shelf
Lands Act or
Deepwater Port Act,
or affecting
certain natural
resources.
Sec. 112.1(d)(2)(i): Sec. 112.1(d)(2)(i) Sec. 112.1(d)(2)(i)
Section 112.1(d)(2) exempts : Section : The revised rule
from the rule a facility 112.1(d)(2) exempts provides that
which meets both criteria from the rule a completely buried
specified in Sec. facility which tanks subject to
112.1(d)(2)(i) and (ii). meets both criteria all of the
The first criterion, found specified in Sec. technical
in Sec. 112.1(d)(2)(i) is: 112.1(d)(2)(i) and requirements of
the completely buried (ii). The first parts 280 or 281 do
storage capacity of the criterion, Sec. not count in the
facility is 42,000 gallons 112.1(d)(2)(i) is: calculation of the
or less of oil. The the completely 42,000 gallon
threshold applies to buried storage threshold. It also
storage capacity contained capacity of the clarifies that
in operating equipment as facility is 42,000 permanently closed
well as to storage capacity gallons or less of tanks do not count
contained in tanks. oil. For purposes in the calculation
of this exemption, of that threshold.
the completely The threshold
buried storage continues to apply
capacity of a to storage capacity
facility does not contained in
include the operating equipment
capacity of as well as to
completely buried storage capacity
tanks, as defined contained in tanks.
in Sec. 112.2,
that are currently
subject to all of
the technical
requirements of 40
CFR part 280 or all
of the technical
requirements of a
State program
approved under 40
CFR part 281. Also,
the completely
buried storage
capacity of a
facility does not
include the
capacity of
completely buried
tanks that are
``permanently
closed,'' as
defined in Sec.
112.2. The
threshold applies
to storage capacity
contained in
operating equipment
as well as to
storage capacity
contained in tanks.
Sec. 112.1(d)(2)(ii): The Sec. 112.1(d)(2)(ii Sec. 112.1(d)(2)(ii
second criterion, found in ): The second ): The revised rule
Sec. 112.1(d)(2)(ii) is: criterion found in raises the
the storage capacity, which Sec. 112.1(d)(2)(i threshold for
is not buried, of the i) is: the aboveground storage
facility is 1,320 gallons aboveground storage capacity by
or less of oil, provided capacity of the eliminating the
that no single container facility is 1,320 provision that
has a storage capacity of gallons or less of triggers the
greater than 660 gallons. oil. For purposes requirement to
The threshold applies to of this exemption, prepare and
storage capacity contained only containers of implement an SPCC
in operating equipment as oil with a capacity Plan if any single
well as to storage capacity of 55 gallons or container has a
in containers. greater are capacity greater
counted. The than 660 gallons.
aboveground storage It maintains the
capacity of a greater than 1,320
facility does not gallon threshold.
include the The revised rule
capacity of also establishes a
containers that are de minimis
``permanently container capacity
closed,'' as size to calculate
defined in 112.2. aboveground storage
The threshold capacity. Only
applies to storage containers with a
capacity contained capacity of 55
in operating gallons or greater
equipment as well are counted in the
as to storage calculation of
capacity in aboveground storage
containers. capacity. The
revised rule
clarifies that
permanently closed
containers do not
count in the
calculation of
aboveground storage
capacity. The
threshold continues
to apply to storage
capacity contained
in operating
equipment as well
as to storage
capacity in
containers.
Sec. 112.1(d)(4): No Sec. 112.1(d)(4): Sec. 112.1(d)(4):
counterpart in current rule. Exempts from the Completely buried
SPCC requirements storage tanks
completely buried subject to all of
storage tanks, as the technical
defined in Sec. requirements of 40
112.2, as well as CFR part 280 or a
connected State program
underground piping, approved under 40
underground CFR part 281 are no
ancillary longer required to
equipment, and comply with SPCC
containment provisions, except
systems, when such for the facility
tanks are subject diagram. EPA
to all of the estimates that
technical under this new
requirements of 40 rule, most gasoline
CFR part 280 or a service stations
State program will drop out of
approved under 40 the SPCC program.
CFR part 281,
except that such
tanks must be
marked on the
facility diagram as
required by Sec.
112.7(a)(3), if the
facility is
otherwise subject
to this part.
Sec. 112.1(d)(5): No Sec. 112.1(d)(5): Sec. 112.1(d)(5):
counterpart in current rule. The revised rule In response to
exempts containers comments, EPA has
with a storage established a
capacity of less minimum size
than 55 gallons of container for
oil from all SPCC purposes of the
requirements. regulatory
threshold.
Containers with a
storage capacity of
less than 55
gallons of oil are
exempt from all
SPCC requirements.

[[Page 47045]]

Sec. 112.1(d)(6): No Sec. 112.1(d)(6): Sec. 112.1(d)(6): A
counterpart in current rule. Exempts any facility or part
facility or part thereof used
thereof from the exclusively for
rule, if used wastewater
exclusively for treatment will no
wastewater longer be subject
treatment and not to prevention
used to meet any planning unless it
other requirement is used to meet
of part 112. The part 112
production, requirements.
recovery, or
recycling of oil is
not wastewater
treatment for
purposes of this
paragraph.
Sec. 112.1(f): No Sec. 112.1(f): Sec. 112.1(f): This
counterpart in current rule. Notwithstanding any amendment gives the
regulatory Regional
exemptions, the Administrator
Regional authority to
Administrator may require preparation
require that the of an entire SPCC
owner or operator plan, or applicable
of any facility part, by an owner
subject to EPA or operator of a
jurisdiction under facility exempted
section 311(j) of from SPCC
the Clean Water Act requirements when
(CWA), prepare and it becomes
implement an SPCC necessary to
Plan, or any achieve the
applicable part, to purposes of the
carry out the CWA. This authority
purposes of the will be exercised
CWA. The rule on a case-by-case
includes notice and basis. The decision
appeal provisions. to require a Plan
could be based on
the presence of
environmental
concerns not
adequately
addressed under
other regulations,
or other relevant
environmental
factors, for
example, discharge
history.
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Section 112.2--Definitions
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Sec. 112.2--definition of Sec. 112.2-- Sec. 112.2--
facility: No counterpart in definition of definition of
current rule. facility: facility: The
``Facility'' is revised rule
defined as any clarifies that a
mobile or fixed, facility may be as
onshore or offshore small as a piece of
building, equipment, for
structure, example, a tank, or
installation, as large as a
equipment, pipe, or military base.
pipeline used in
oil well drilling
operations, oil
production, oil
refining, oil
storage, oil
gathering, oil
transfer, oil
distribution, and
waste treatment, or
in which oil is
used. . . .''
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Section 112.3: Requirement to prepare and implement Spill Prevention,
Control, and Countermeasure Plan
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Sec. 112.3(a): An owner or Sec. 112.3(a): An Sec. 112.3(a): For
operator of an onshore or owner or operator those facilities
offshore facility in (O/O) of an onshore already in
operation on or before or offshore operation on the
January 10, 1974, that has facility in effective date of
had a discharge to operation on or the rule, an owner
navigable waters or before August 16, or operator of a
adjoining shorelines, or, 2002, that has had facility subject to
due to its location, could a discharge as the rule must
reasonably be expected to described in Sec. prepare an SPCC
have a discharge to 112.1(b), or, due Plan within the
navigable waters or to its location, current time frame
adjoining shorelines, must could reasonably be of six months. He
prepare and fully implement expected to have a may take up to an
an SPCC Plan, in writing discharge as additional six
and in accordance with Sec. described in Sec. months to implement
112.7. The owner or 112.1(b), must the Plan. The
operator must prepare the prepare a written revised rule
Plan within 6 months, and Plan in accordance extends this same
fully implement it as soon with Sec. 112.7 time frame to
as possible, but not later and any other amendments
than within 1 year. applicable section necessary to bring
within 6 months of the Plan into
the effective date compliance with
of the rule, and rule revisions. An
implement it as owner or operator
soon as possible, of a facility
but not later than becoming
within 1 year of operational after
the effective date August 16, 2002
of the rule. The O/ through August 18,
O of facility that 2003 must prepare
becomes operational and implement a
after August 16, Plan not later than
2002 through August August 18, 2003.
18, 2003 must
prepare and
implement a Plan
not later than
August 18, 2003.
Sec. 112.3(b): The owner or Sec. 112.3(b): The Sec. 112.3(b): The
operator of an onshore and owner or operator owner or operator
offshore facility that of an onshore or of a facility that
becomes operational after offshore facility becomes operational
January 10, 1974, and that that becomes after August 18,
has had a discharge to operational after 2003 must now
navigable waters or August 18, 2003, prepare and
adjoining shorelines, or and could implement an SPCC
could reasonably be reasonably be Plan before
expected to have a expected to have a beginning
discharge to navigable discharge as operations. The
waters or adjoining described in Sec. time frame in the
shorelines, must prepare an 112.1(b), from that current rule is up
SPCC Plan. Unless the owner facility, must to 6 months for
or operator is granted an prepare and Plan preparation
extension of time to implement an SPCC and up to 6 months
prepare and implement the Plan before more for Plan
Plan by the Regional beginning implementation.
Administrator, he must operations.
prepare the Plan within 6
months and fully implement
it as son as possible, but
not later than within 1
year.

[[Page 47046]]

Sec. 112.3(d): No SPCC Plan Sec. 112.3(d): No Sec. 112.3(d): The
is effective to satisfy the SPCC Plan is revised rule adds
requirements of the SPCC effective to specificity to the
rule unless it has been satisfy the PE's attestation.
reviewed and certified by a requirements of the The specificity
Registered Professional SPCC rule unless it includes a
Engineer (PE). By means of has been reviewed requirement that
this certification the PE, and certified by a the PE consider
having examined the PE. By means of applicable industry
facility and being familiar this certification standards and
with the provisions of the the PE attests certify that the
SPCC rule, attests that the that: (i) he is Plan is prepared in
SPCC Plan has been prepared familiar with the accordance with
in accordance with good requirements of the part 112
engineering practices. The SPCC rule; (ii) he requirements.
PE's certification does not or his agent has Presently, the PE
relieve the owner or visited and must attest only
operator of an onshore or examined the that the Plan has
offshore facility of his facility; (iii) the been prepared in
duty to prepare and fully Plan has been accordance with
implement the Plan in prepared in good engineering
accordance with all accordance with practice. The
applicable requirements. good engineering revised rule allows
practice, including an agent of the PE
consideration of to visit and
applicable industry examine the
standards, and with facility in place
the requirements of of the PE, but the
the SPCC rule; (iv) PE must review the
procedures for agent's work, and
required certify the Plan.
inspections and
testing have been
established; and,
(v) the Plan is
adequate for the
facility. The PE's
certification does
not relieve the
owner or operator
of an onshore or
offshore facility
of his duty to
prepare and fully
implement the Plan
in accordance with
all applicable
requirements.
Sec. 112.3(e): An owner or Sec. 112.3(e): An Sec. 112.3(e): The
operator of a facility for owner or operator revised rule
which an SPCC Plan is of a facility for requires the
required must maintain a which an SPCC Plan facility owner or
complete copy of the Plan is required must operator to
at the facility if the maintain a complete maintain a copy of
facility is attended as copy of the Plan at the Plan at the
least 8 hours per day, or the facility if the facility if it is
at the nearest field office facility is attended at least 4
if the facility is not so attended at least 4 hours a day, in
attended, and must make the hours per day, or contrast to the
Plan available to the at the nearest current requirement
Regional Administrator for field office if the to maintain it at
on-site review during facility is not so the facility if it
normal working hours. attended, and must is attended at
make the Plan least 8 hours a
available to the day.
Regional
Administrator for
on-site review
during normal
working hours.
Sec. 112.3(f): The Regional Sec. 112.3(f): The Sec. 112.3(f): The
Administrator may authorize Regional revised rule
an extension of time for Administrator may provides for
the preparation and authorize an extension for
implementation of an SPCC extension of time amendments of the
Plan, when he finds that for the preparation Plan, as well as
the owner or operator and implementation the entire Plan.
cannot comply with all SPCC of an SPCC Plan, or
requirements as a result of any amendment
either nonavailability of thereto, when he
qualified personnel, or finds that the
delays in construction or owner or operator
equipment delivery beyond cannot comply with
his control and without his all SPCC
fault, or the fault of his requirements as a
agents or employees. The result of either
rule also specifies what nonavailability of
the letter requesting an qualified
extension must contain. personnel, or
delays in
construction or
equipment delivery
beyond his control
and without his
fault, or the fault
of his agents or
employees. The rule
also specifies what
the letter
requesting an
extension must
contain.
------------------------------------------------------------------------
Section 112.4: Amendment of Spill Prevention, Control, and
Countermeasures Plan by Regional Administrator
------------------------------------------------------------------------
Sec. 112.4(a): Whenever an Sec. 112.4(a): Sec. 112.4(a): We
SPCC facility has: (1) Whenever an SPCC have revised the
discharged more than 1,000 facility has: (1) geographic scope of
U.S. gallons of oil into or discharged more the rule in
upon the navigable waters than 1,000 U.S. accordance with the
of the United States or gallons of oil in a CWA amendments, by
adjoining shorelines in a single discharge as using the phase
single discharge to described in Sec. ``discharge as
navigable waters or 112.1(b), or (2) described in Sec.
adjoining shorelines, or discharged more 112.1(b).'' We also
(2) discharged oil in than 42 U.S. raised the
harmful quantities, as gallons of oil, as threshold for
defined in 40 CFR part 110, described in Sec. reporting two
into or upon the navigable 112.1(b), in each discharges as
waters of the United States of 2 discharge, described in Sec.
or adjoining shorelines in within any 12-month 112.1(b), from a
each of 2 discharges to period, the owner ``reportable''
navigable waters or or operator of the quantity under the
adjoining shorelines, facility must Clean Water Act, to
reportable under section submit to the RA, a threshold of more
311(b)(5) of the Clean within 60 days from than 42 U.S.
Water Act, within any 12- the time the gallons, or 1
month period, the owner or facility becomes barrel, in each of
operator of the facility subject to this those discharges.
must submit to the Regional section, 8 The 1,000 gallon
Administrator (RA), within different items of threshold for a
60 days from the time the information, plus single discharge as
facility becomes subject to additional described in Sec.
this section, 10 different information 112.1(b) remains
items of information, plus pertinent to the unchanged. We also
additional information Plan if the RA reduced the amount
pertinent to the Plan if requests it. of information that
the RA requests it. must minimally be
submitted to the
RA.
Sec. 112.4(b): Section Sec. 112.4(b): Sec. 112.4(b):
112.4 does not apply until Section 112.4 does Section 112.3 in
the expiration of the time not apply until the the revised rule
permitted for the expiration of the allows more time
preparation and time permitted for for some facilities
implementation of the Plan the preparation and for preparation and
under Sec. 112.3. implementation of implementation of a
the Plan under Sec. Plan, or any
112.3. amendments thereto,
than in the 1991
proposed rule.
Therefore, the
implementation of
the requirements of
Sec. 112.4 is
postponed until the
new time frames in
Sec. 112.3 have
passed.

[[Page 47047]]

Sec. 112.4(c): The owner or Sec. 112.4(c): The Sec. 112.4(c): The
operator is required to owner or operator revised rule
provide the same is required to changes the
information he provided to provide the same requirement from
EPA, under Sec. 112.4(a), information he notification to the
to the State agency in provided to EPA, State agency in
charge of water pollution under Sec. charge of water
control activities in and 112.4(a), to the pollution control
for the State in which the State agency in activities to
facility is located at the charge of oil notification to the
same time he provides it to pollution control State agency in
EPA. After receiving that activities in the charge of oil
information, the State State in which the pollution control
agency may conduct a review facility is located activities. There
and make recommendations to at the same time he may be more than
the Regional Administrator provides it to EPA. one such agency in
as to further procedures, After receiving some States.
methods, equipment and that information,
other requirements for the State agency or
equipment necessary to agencies may
prevent and to contain conduct a review
discharges of oil from the and make
facility. recommendations to
the Regional
Administrator as to
further procedures,
methods, equipment
and other
requirements for
equipment necessary
to prevent and to
contain discharges
of oil from the
facility.
Sec. 112.4(d): This section Sec. 112.4(d): This Sec. 112.4(d): The
allows the Regional section allows the revised rule
Administrator to require a Regional provides that the
facility owner or operator Administrator to Regional
to amend his Plan after require a facility Administrator may
review of materials the owner or operator require Plan
owner or operator submits to amend his Plan amendment after on-
under Sec. 112.4 (a) and after review of site review of the
(c). materials the owner Plan.
or operator submits
under Sec. 112.4
(a) and (c), or
after on-site
review of the Plan.
------------------------------------------------------------------------
Section 112.5: Amendment of Spill Prevention, Control, and
Countermeasures Plan by owners or operators
------------------------------------------------------------------------
Sec. 112.5(b): This section £Sec. 112 Sec. 112.5(b): The
requires an owner or .5(b): This section revised rule
operator to review his Plan requires an owner changes the period
at least every 3 years from or operator to of review for SPCC
the date a facility becomes review his Plan at Plans from 3 to 5
subject to the SPCC rule. least every 5 years years. It also
As a result of this review from the date a requires
and evaluation, the owner facility becomes documentation of
or operator must amend the subject to the SPCC completion of the
SPCC Plan within 6 months rule; or for an review and
of the review to include existing facility, evaluation.
more effective prevention 5 years from the
and control technology if: date the last
(1) Such technology will review was required
significantly reduce the under this part.
likelihood of a discharge The owner or
to navigable waters or operator must amend
adjoining shorelines from the SPCC Plan
the facility; and (2) if within 6 months of
such technology has been the review to
field-proven at the time of include more
the review. effective
prevention and
control technology
if: (1) Such
technology will
significantly
reduce the
likelihood of a
discharge as
described in Sec.
112.1(b) from the
facility; and (2)
if such technology
has been field-
proven at the time
of the review.
Implementation of
amendments is
required within 6
months following
amendment. The
owner or operator
must document
completion of the
review and
evaluation, and
must sign a
statement as to
whether he will
amend the Plan,
either at the
beginning or end of
the Plan or in a
log or an appendix
to the Plan. The
following will
suffice, ``I have
completed review
and evaluation of
the SPCC Plan for
(name of facility)
on (date), and will
(will not) amend
the Plan as a
result.''
Sec. 112.5(c): This section Sec. 112.5(c): This Sec. 112.5(c): The
requires that a section requires revised rule
Professional Engineer that a Professional clarifies that a
certify any amendments to Engineer certify Professional
an SPCC Plan. any technical Engineer must
amendments to an certify only
SPCC Plan. technical
amendments. PE
certification is
not required for
non-technical
amendments, like
changes to phone
numbers, names,
etc.
------------------------------------------------------------------------
Section 112.7: Spill Prevention, Control, and Countermeasure Plan
general requirements. We have reorganized Sec. 112.7 of the current
regulation into Secs. 112.7, 112.8, 112.9, 112.10, 112.11, 112.12,
112.13, 112.14, and 112.15 of the final rule based on facility type and
type of oil.
------------------------------------------------------------------------

[[Page 47048]]

Sec. 112.7: This section Sec. 112.7: This Sec. 112.7: The
specifies that a Plan must section specifies revised rule allows
be prepared in accordance that a Plan must be differing formats
with good engineering prepared in for the Plan, other
practices, and have the accordance with than the one format
full approval of management good engineering now specified.
at a level with authority practices, and have While you may use
to commit the necessary the full approval the format
resources. The SPCC Plan of management at a specified in the
must follow the sequence level with rule, you may also
specified in the rule, and authority to commit use other formats,
include a discussion of the the necessary such as State
facility's conformance with resources. The SPCC plans, Integrated
the requirements of the Plan must follow Contingency Plans,
rule. the sequence and any other
specified in the formats acceptable
rule, and include a to the Regional
discussion of the Administrator. If
facility's you use another
conformance with format, you must
the requirements of cross-reference its
the rule. If you do provisions to the
not follow the requirement listed
sequence specified in the SPCC rule.
in the rule, you Also, if you use
must prepare an another format, you
equivalent must ensure that
prevention Plan the format includes
acceptable to the all applicable SPCC
Regional requirements, or
Administrator that you must supplement
meets all that format to
applicable include all
requirements, and applicable SPCC
you must supplement requirements.
it with section
cross-referencing
the location of
requirements listed
in the SPCC rule to
the equivalent
requirements in the
other prevention
plan.
Sec. 112.7(a)(2): No Sec. 112.7(a)(2): Sec. 112.7(a)(2):
counterpart in current rule. This provision The revised rule
explicitly allows explicitly allows
deviations from deviations from
most of the rule's most of the rule's
substantive substantive
requirements requirements
(except for (except for
secondary secondary
containment containment
requirements), requirements),
provided that you provided that you
explain your explain your
reasons for reasons for
nonconformance with nonconformance with
the requirement, the requirement,
and provide and provide
equivalent equivalent
environmental environmental
protection with an protection with an
alternate measure. alternate measure.
If the Regional If the Regional
Administrator Administrator
determines that the determines that the
alternate measure alternate measure
described in your described in your
Plan does not Plan does not
provide equivalent provide equivalent
protection, he may protection, he may
require that you require that you
amend the Plan. amend your Plan.
Sec. 112.7(a)(3): No Sec. 112.7(a)(3): Sec. 112.7(a)(3):
counterpart in current rule. This section The facility
requires a facility diagram must
owner or operator include completely
to describe the buried tanks
physical layout of exempted from other
the facility and SPCC requirements.
include a facility
diagram in the Plan.
Sec. 112.7(c): This section Sec. 112.7(c): This Sec. 112.7(c): The
is the general provision section is the revised rule
requiring secondary general provision maintains the
containment. requiring secondary current standard
containment. that dikes, berms,
or retaining walls
must be
``sufficiently
impervious'' to
contain oil. We
withdrew the
proposed standard
that such secondary
containment must be
impermeable for 72
hours.
Sec. 112.7(d): When it is Sec. 112.7(d): When Sec. 112.7(d): The
not practicable to install it is not revised rule adds
secondary containment at practicable to new requirements
your facility, this section install secondary for periodic
requires that you explain containment at your integrity testing
why and provide a strong facility, this of containers, and
oil spill contingency plan section requires periodic integrity
in your SPCC Plan. The that you explain and leak testing of
contingency plan must why and provide a valves and piping.
follow the provisions of 40 strong oil spill We clarify that if
CFR part 109. You must also contingency plan in you have submitted
provide in your SPCC Plan a your SPCC Plan. The a facility response
written commitment to contingency plan plan under Sec.
manpower, equipment and must follow the 112.20 for a
materials required to provisions of 40 facility, you need
expeditiously control and CFR part 109. You not provide for
remove any harmful quantity must also provide that facility
of oil discharged. in your SPCC Plan a either a
written commitment contingency plan
to manpower, following the
equipment and provisions of part
materials required 109, nor a written
to expeditiously commitment of
control and remove manpower,
any quantity of oil equipment, and
discharged that may materials required
be harmful; conduct to expeditiously
periodic integrity control and remove
testing of the any quantity of oil
containers; and, discharged that may
conduct periodic be harmful.
integrity and leak
testing of the
valves and piping.
Sec. 112.7(e)(8): This Sec. 112.7(e): This Sec. 112.7(e): The
section requires that the section requires revised rule allows
owner or operator conduct that the owner or use of usual and
required inspections in operator conduct customary business
accordance with written required records to serve as
procedures developed for inspections and a record of tests
the facility. The owner or tests in accordance or inspections,
operator must maintain with written instead of keeping
these written procedures procedures duplicate records.
and a record of developed by him or It also allows the
inspections, signed by the by the certifying owner or operator
appropriate supervisor or engineer for the to keep those
inspector, as part of the facility. The owner records as an
SPCC Plan, and maintain or operator must appendix to the
them for a period of 3 maintain these Plan, or in a
years. written procedures separate log, etc.,
and a record of with the Plan,
inspections and rather than
tests, signed by requiring that
the appropriate those records be a
supervisor or part of the Plan.
inspector, with the The rule also
SPCC Plan, and acknowledges that
maintain them for a the certifying
period of 3 years. engineer, as well
Records of as the owner or
inspections and operator, has a
tests kept pursuant role in the
to usual and development of
customary business inspection
practices are procedures.
sufficient for
purposes of the
rule.

[[Page 47049]]

Sec. 112.7(e)(10): The Sec. 112.7(f): The Sec. 112.7(f): The
owner or operator of a owner or operator revised rule
facility is responsible for of a facility, at a mandates training
properly instructing minimum, must train only for oil-
personnel in the operation oil-handling handling employees,
and maintenance of personnel in the instead of all
equipment to prevent the operation and employees. It
discharges of oil and maintenance of specifies
applicable pollution equipment to additional topics
control laws, rules, and prevent the for the training of
regulations. An owner or discharge of oil; these employees. It
operator must designate a discharge procedure also specifies that
person at each facility who protocols; discharge
is accountable for oil applicable prevention
discharge prevention and pollution control briefings must be
who reports to facility laws, rules, and conducted at least
management. An owner or regulations; once a year,
operator must schedule and general facility instead of at
conduct discharge operations; and, ``intervals
prevention briefings for the contents of the frequent enough to
operating personnel at facility Plan. An assure adequate
intervals frequent enough owner or operator understanding of
to assure adequate must designate a the SPCC Plan for
understanding of the SPCC person at each that facility.''
Plan for that facility. facility who is
Such briefings must accountable for oil
highlight and describe discharge
known discharges to prevention and who
navigable waters or reports to facility
adjoining shorelines, or management. An
failures, malfunctioning owner or operator
components, and recently must schedule and
developed precautionary conduct discharge
measures. prevention
briefings for oil-
handling personnel
at least once a
year to assure
adequate
understanding of
the SPCC Plan for
that facility. Such
briefings must
highlight and
describe known
discharges as
described in Sec.
112.1(b), or
failures,
malfunctioning
components, and
recently developed
precautionary
measures.
------------------------------------------------------------------------
Sec. 112.7(i): No Sec. 112.7(i): This Sec. 112.7(i): The
counterpart in current rule. section requires brittle fracture
evaluation for requirement was
field-constructed triggered by the
aboveground Ashland Oil tank
containers collapse in 1988
undergoing repair, due to brittle
alteration, fracture.
reconstruction, or
change in service
that might affect
the risk of a
discharge or
failure due to
fracture or other
catastrophe. It
also requires such
evaluation when
there has actually
been a discharge or
failure due to
brittle fracture or
other catastrophe.
------------------------------------------------------------------------
Section 112.8: Requirements for onshore facilities (excluding production
facilities).
------------------------------------------------------------------------
Sec. 112.7(e)(2)(iii): This Sec. 112.8(c)(3): Sec. 112.8(c)(3):
section establishes This section The revised rule
substantive requirements establishes allows records
for stormwater drainage substantive required by NPDES
from diked areas, and requirements for permit regulations
recordkeeping requirements stormwater drainage to record
for stormwater bypass from diked areas, stormwater bypass
events. and recordkeeping events to be used
requirements for for SPCC purposes
stormwater bypass in lieu of events
events. The revised records
rule provides that specifically
records required prepared for
under permits purpose.
issued in
accordance with the
National Pollutant
Discharge
Elimination Systems
(NPDES) rules are
sufficient for
recording
stormwater bypass
events.
Sec. 112.7(e)(2)(vi): This Sec. 112.8(c)(6): Sec. 112.8(c)(6):
provision requires that The revised rule The revised rule
aboveground containers be requires that requires that an
subject to periodic aboveground owner or operator
integrity testing, taking containers be test aboveground
into account tank design tested for containers for
(floating roof, etc.) and integrity on a integrity on a
using such techniques as regular schedule, regular schedule,
hydrostatic testing, visual and when material and when material
inspection, or a system of repairs are done. repairs are done.
non-destructive shell The frequently and The rationale for
thickness testing. The type of testing adding a testing
owner or operator must keep must take into requirement when
comparison records where account container material repairs
appropriate, and must size and design are done is that
include tank supports and (floating roof, material repairs
foundations in these skid-mounted, might increase the
inspections. In addition, elevated, partially potential for oil
operating personnel must buried, for discharges. Usual
frequently inspect the example). The owner and customary
outside of the container or operator must business records
for signs of deterioration, combine visual may be used for the
leaks, or accumulation of inspection with purpose of
oil inside diked areas. another testing integrity testing,
technique such as instead of records
hydrostatic specifically
testing, created for this
radiographic purpose.
testing, ultrasonic
testing, acoustic
emissions testing,
or other system of
non-destructive
shell testing. The
owner or operator
must keep
comparison records
and must include
tank supports and
foundations in
these inspections.
In addition,
operating personnel
must frequently
inspect the outside
of the container
for signs of
deterioration,
leaks, or
accumulation of oil
inside diked areas.
Records of
inspections and
tests kept pursuant
to usual and
customary business
practices are
sufficient for
purposes of the
rule.

[[Page 47050]]

Sec. 112.7(e)(3)(i): This Sec. 112.8(d)(1): Sec. 112.8(d)(1):
section requires that This section The revised rule
buried piping installations requires that requires that all
have protective wrapping buried piping that buried piping that
and coating and cathodic is installed or is installed or
protection, if soil replaced on or replaced on or
conditions warrant. after August 16, after August 16,
2002 must have 2002 must have
protective wrapping protective wrapping
and coating and and coating and
cathodic cathodic
protection, or protection, or
otherwise satisfy otherwise satisfy
the corrosion the corrosion
protection protection
provisions for provisions for
piping in 40 CFR piping in 40 CFR
part 280 or a State part 280 or a State
program approved program approved
under 40 CFR part under 40 CFR part
281. 281, for all soil
conditions.
------------------------------------------------------------------------
Section 112.9: Requirements for onshore oil production facilities.
------------------------------------------------------------------------
Sec. 112.7(e)(5)(ii): This Sec. 112.9(b)(1): Sec. 112.9(b)(1):
section provides This section The revised rule
requirements for stormwater provides provides that
drainage events. requirements for records required by
stormwater drainage NPDES permit
events. regulations are
allowable to record
stormwater bypass
events for SPCC
purposes in lieu of
records
specifically
generated for that
purpose.
Sec. 112.7(e)(5)(iii)(B): Sec. 112.9(c)(2): Sec. 112.9(c)(2):
This section requires This section The revised rule
secondary containment for requires secondary clarifies that the
onshore production containment for secondary
facilities. onshore production containment must
facilities. include sufficient
freeboard to
contain
precipitation.
------------------------------------------------------------------------

IV. Discussion of Issues

Below is a discussion of the major issues for which we solicited
comments in the 1991, 1993, and 1997 proposals. We also discuss the use
of industry standards to comply with the rule. Following these issues,
we discuss the revisions to each section and the major comments
received, as well as responses to those comments. A detailed Response
to Comments document addressing all comments is also part of this
rulemaking and may be found in the administrative record for this rule.

A. Reorganization of the Rule

Background
In 1991, EPA proposed to reorganize the SPCC rule based on facility
type. The purpose of that proposed reorganization was to clarify SPCC
Plan requirements for different types of facilities. In this
rulemaking, we are dividing the rule into subparts. Subpart A consists
of an applicability section, definitions, and general requirements for
all facilities. Subparts B and C outline the requirements for different
types of facilities storing and using different types of oils. Subpart
B is for facilities storing or using petroleum oils or other non-
petroleum oils, except those oils covered by subpart C. Subpart C is
for facilities storing or using animal fats and oils and greases, or
fish and marine mammal oils; and, oils of vegetable origin, including
oils from seeds, nuts, fruits, and kernels. Subpart D is for response
requirements.
If you have already prepared an SPCC Plan, you were required to
follow the sequence of Sec. 112.7 of the current rule, prior to today's
revisions. Today, we are reorganizing that portion of the rule into
Secs. 112.7 through 112.15, based on facility type and type of oil.
Under the introduction to Sec. 112.7 of today's rule, if your Plan does
not follow the revised sequence, you must supplement it with a section
cross-referencing the location of requirements listed in the revised
rule and the equivalent requirements in your Plan. To assist you in
preparing this cross-reference, the following table lists each
requirement in the revised rule, provides the corresponding paragraph
of the current rule, and leaves a space where you can show the location
of the provision in your Plan. We have put this rule, including the
table below, on our website for your convenience. You may download it
for your use. See our Web site at www.epa.gov/oilspill.
Under the revised rule, Sec. 112.7 sets out the general
requirements for SPCC Plans for all facilities and all types of oil.
Sections 112.8 to 112.11 set out the SPCC Plan requirements for
petroleum oil and for non-petroleum oils other than animal fats and
vegetable oils. Sections 112.12 to 112.15 set out the SPCC Plan
requirements for animal fats and oils and greases, and fish and marine
mammal oils; and for oils of vegetable origin, including oils from
seeds, nuts, fruits, and kernels.

----------------------------------------------------------------------------------------------------------------
Revised rule Current rule Description of rule Page
----------------------------------------------------------------------------------------------------------------
Sec. 112.7.............................. Sec. 112.7................ General requirements for SPCC ......
Plans for all facilities and
all oil types.
Sec. 112.7(a)........................... Sec. 112.7................ General requirements; discussion ......
of facility's conformance with
rule requirements; deviations
from Plan requirements;
facility characteristics that
must be described in the Plan;
spill reporting information in
the Plan; emergency procedures.
Sec. 112.7(b)........................... Sec. 112.7(b)............. Fault analysis.................. ......
Sec. 112.7(c)........................... Sec. 112.7(c)............. Secondary containment........... ......
Sec. 112.7(d)........................... Sec. 112.7(d)............. Contingency planning............ ......
Sec. 112.7(e)........................... Sec. 112.7(e)(8).......... Inspections, tests, and records. ......
Sec. 112.7(f)........................... Sec. 112.7(e)(10)......... Employee training and discharge ......
prevention procedures.
Sec. 112.7(g)........................... Sec. 112.7(e)(9).......... Security (excluding oil ......
production facilities).
Sec. 112.7(h)........................... Sec. 112.7(e)(4).......... Loading/unloading (excluding ......
offshore facilities).
Sec. 112.7(i)........................... n/a........................ Brittle fracture evaluation ......
requirements.
Sec. 112.7(j)........................... Sec. 112.7(e)............. Conformance with State ......
requirements.

[[Page 47051]]

Sec. 112.8 Sec. 112.12................. Sec. 112.7(e)(1).......... Requirements for onshore ......
facilities (excluding
production facilities).
Sec. 112.8(a), Sec. 112.12(a).......... n/a........................ General and specific ......
requirements.
Sec. 112.8(b), Sec. 112.12(b).......... Sec. 112.7(e)(1).......... Facility drainage............... ......
Sec. 112.8(c), Sec. 112.12(c).......... Sec. 112.7(e)(2).......... Bulk storage containers......... ......
Sec. 112.8(d), Sec. 112.12(d).......... Sec. 112.7(e)(3).......... Facility transfer operations, ......
pumping, and facility process.
Sec. 112.9, Sec. 112.13................ Sec. 112.7(e)(5).......... Requirements for onshore ......
production facilities.
Sec. 112.9(a), Sec. 112.13(a).......... n/a........................ General and specific ......
requirements.
Sec. 112.9(b), Sec. 112.13(b).......... Sec. 112.7(e)(5)(ii)...... Oil production facility drainage ......
Sec. 112.9(c), Sec. 112.13(c).......... Sec. 112.7(e)(5)(iii)..... Oil production facility bulk ......
storage containers.
Sec. 112.9(d), Sec. 112.13(d).......... Sec. 112.7(e)(5)(iv)...... Facility transfer operations, ......
oil production facility.
Sec. 112.10, Sec. 112.14............... Sec. 112.7(e)(6).......... Requirements for onshore oil ......
drilling and workover
facilities.
Sec. 112.10(a), Sec. 112.14(a)......... n/a........................ General and specific ......
requirements.
Sec. 112.10(b), Sec. 112.14(b)......... Sec. 112.7(e)(6)(i)....... Mobile facilities............... ......
Sec. 112.10(c), Sec. 112.14(c)......... Sec. 112.7(e)(6)(ii)...... Secondary containment--catchment ......
basins or diversion structures.
Sec. 112.10(d), Sec. 112.14(d)......... Sec. 112.7(e)(6)(iii)..... Blowout prevention (BOP)........
Sec. 112.11, Sec. 112.15............... Sec. 112.7(e)(7).......... Requirements for offshore oil ......
drilling, production, or
workover facilities.
Sec. 112.11(a), Sec. 112.15(a)......... n/a........................ General and specific ......
requirements.
Sec. 112.11(b), Sec. 112.15(b)......... Sec. 112.7(e)(7)(ii)...... Facility drainage............... ......
Sec. 112.11(c), Sec. 112.15(c)......... Sec. 112.7(e)(7)(iii)..... Sump systems.................... ......
Sec. 112.11(d), Sec. 112.15(d)......... Sec. 112.7(e)(7)(iv)...... Discharge prevention systems for ......
separators and treaters.
Sec. 112.11(e), Sec. 112.15(e)......... Sec. 112.7(e)(7)(v)....... Atmospheric storage or surge ......
containers; alarms.
Sec. 112.11(f), Sec. 112.15(f)......... Sec. 112.7(e)(7)(vi)...... Pressure containers; alarm ......
systems.
Sec. 112.11(g), Sec. 112.15(g)......... Sec. 112.7(e)(7)(vii)..... Corrosion protection............ ......
Sec. 112.11(h), Sec. 112.15(h)......... Sec. 112.7(e)(7)(viii).... Pollution prevention system ......
procedures.
Sec. 112.11(i), Sec. 112.15(i)......... Sec. 112.7(e)(7)(ix)...... Pollution prevention systems; ......
testing and inspection.
Sec. 112.11(j), Sec. 112.15(j)......... Sec. 112.7(e)(7)(x)....... Surface and subsurface well shut- ......
in valves and devices.
Sec. 112.11(k), Sec. 112.15(k)......... Sec. 112.7(e)(7)(xi)...... Blowout prevention.............. ......
Sec. 112.11(l), Sec. 112.15(l)......... Sec. 112.7(e)(7)(xiv)..... Manifolds....................... ......
Sec. 112.11(m), Sec. 112.15(m)......... Sec. 112.7(e)(7)(xv)...... Flowlines, pressure sensing ......
devices.
Sec. 112.11(n), Sec. 112.15(n)......... Sec. 112.7(e)(7)(xvi)..... Piping; corrosion protection.... ......
Sec. 112.11(o), Sec. 112.15(o)......... Sec. 112.7(e)(7)(xvii).... Sub-marine piping; environmental ......
stresses.
Sec. 112.11(p), Sec. 112.15(p)......... Sec. 112.7(e)(7)(xviii)... Inspections of sub-marine piping ......
----------------------------------------------------------------------------------------------------------------

In 1995, Congress enacted the Edible Oil Regulatory Reform Act
(EORRA), 33 U.S.C. 2720. That statute mandates that most Federal
agencies differentiate between and establish separate classes for
various types of oils, specifically: animal fats and oils and greases,
and fish and marine mammal oils; oils of vegetable origin; petroleum
oils, and other non-petroleum oils and greases. In differentiating
between these classes of oils, Federal agencies are directed to
consider differences in the physical, chemical, biological, and other
properties, and in the environmental effects, of the classes. In
response to EORRA, as noted above, we have divided the requirements of
the rule by subparts for facilities storing or using the various
classes of oils listed in that act.
Because at the present time EPA has not proposed differentiated
SPCC requirements for public notice and comment, the requirements for
facilities storing or using all classes of oil will remain the same.
However, we have published an advance notice of proposed rulemaking
seeking comments on how we might differentiate among the requirements
for the facilities storing or using various classes of oil. 64 FR
17227, April 8, 1999. If after considering these comments, there is
adequate justification for differentiation among the requirements for
those facilities, we will propose rule changes.

B. Plain Language Format

We have rewritten the SPCC rule in a plain language format to make
it clearer and easier to use. A plain language format includes maximum
use of the active voice; short, clear sentences; and, in this rule, a
summary table of the major regulatory changes. This format is part of
the Agency's ongoing efforts in regulatory reinvention. While we have
made substantive changes in some provisions, the plain language changes
are only editorial. The plain language format used in today's rule may
appear different from other rules, but it establishes binding,
enforceable legal requirements.
In this preamble, as in the rule text, we often use the pronoun
``he'' as a generic term. ``He'' does not necessarily mean a man; it
may be a woman, or in some cases, a business organization when
referring to an owner or operator.

C. ``Should to Shall to Must'' Clarification

Background
EPA has always considered that Sec. 112.3 of the SPCC rule requires
that SPCC Plans be prepared in accordance with Sec. 112.7, which in
turn requires that Plans be prepared in accordance with good
engineering practice. However, clarification of the current rule is
necessary because of confusion on the part of some facility owners or
operators who have interpreted the current rule's use of the words
``should'' and ``guidelines'' in Sec. 112.7 as an indication that
compliance with the applicable provisions of the rule is optional. The
rule used the words ``should'' and ``guidelines'' to provide
flexibility for facilities with unique circumstances. Those
circumstances might be such that mandated regulatory provisions would
not be in accord with good engineering practice. Therefore, the rule
gave facilities the opportunity to provide alternative methods that
achieve equivalent environmental protection, or to show that the
provisions were inapplicable based on specific circumstances.

[[Page 47052]]

In 1991, we proposed to clarify that misunderstanding by generally
substituting ``shall'' in place of ``should'' throughout the
reorganized rule. In today's final rule, we have editorially changed
``shall'' to ``must'' in furtherance of the Agency's ``plain language''
objectives. The ``shall'' to ``must'' is not a substantive change, but
merely an editorial change. Nor will the change add to the information
collection burden. We have always included requirements prefaced by
``should'' in the information collection burden for the rule. We will
continue to provide flexibility for an owner or operator who can
explain his reasons for nonconformance with rule requirements, and can
provide alternate measures from those specified in the rule, which
achieve equivalent environmental protection. Section 112.7(a)(2) will
provide such flexibility. In the exercise of our authority to inspect
facilities and SPCC Plans, we reserve the right to find that such
alternate methods do not provide equivalent environmental protection.
In such cases, we would require the owner or operator of the facility
to amend the SPCC Plan to provide equivalent environmental protection.
Comments. Guidance. Several commenters supported the proposed
change. One asked that discretionary provisions might be better placed
in a separate guidance document. Several commenters were concerned that
there are no guidance documents outlining equivalency as provided in
proposed Sec. 112.7(a)(2) and that it may be impossible to prove
equivalency to EPA.
PE certification. Other commenters suggested that if the
Professional Engineer (PE) certified the Plan as adequate for the
facility, then the mandated requirements were unnecessary, as he would
have determined that all appropriate equipment and planning is in
place.
Substantive change. Some commenters argued that the proposal was a
substantive change, contrary to legislative intent, and that we failed
to give opportunity for proper notice and comment, as required by the
Administrative Procedure Act.
Small production facilities. One commenter suggested that the
clarification should not apply to small production facilities, defined
as those with less than 3000 barrels of storage capacity, because those
facilities would suffer severe hardship as a result.
Response to comments. Guidance. EPA agrees with the comment that
recommendations have no place in this rule because we do not wish to
confuse the regulated public as to what is mandatory and what is
discretionary. Instead, some recommendations are discussed in the
preamble to this document, while others can be found in separate
guidance documents or policy statements. When the rule or preamble is
silent, or no published guidance or policy documents exist, we will
generally use industry standards as guidance for rule compliance.
PE certification. While we generally agree that certification by a
PE should show that all necessary equipment and planning are in place,
we reserve the right to make a determination that additional measures
may be necessary to comply with the rule. EPA made it clear in proposed
Sec. 112.3(d), which is finalized today, that a PE certification does
not relieve the owner or operator of the duty to prepare and fully
implement an SPCC Plan in accordance with the rule's requirements.
Substantive change. We disagree that the change is either
substantive or contrary to legislative intent. Section 311(j)(1)(C) of
the Act authorizes the President and, through delegation, EPA, to
establish ``procedures, methods, and equipment and other requirements
for equipment to prevent discharges of oil and hazardous substances
from vessels and from onshore facilities and offshore facilities, and
to contain such discharges.'' That authority is ample to provide the
basis for a mandatory SPCC rule, that is, a rule that establishes
``requirements * * * to prevent discharges.''
We also disagree that the proposed rule failed to provide proper
notice and comment. The preamble to the 1991 proposed rule fully
explained the rationale for the proposed change (56 FR 54620, October
22, 1991), and numerous commenters responded. Furthermore, we have
always interpreted and enforced our rules as mandatory requirements.
EPA recognizes, however, that this clarification may result in
certain owners or operators of regulated facilities recognizing for the
first time that they have been and are subject to various provisions of
part 112. Such owners and operators should, of course, take all
necessary steps to come into compliance with this part as soon as
possible. In exercising its prosecutorial discretion, the Agency always
takes into account the good faith and efforts to comply of an owner or
operator who has been in noncompliance with applicable laws and
regulations when deciding whether or not to take an enforcement action.
Small production facilities. We disagree that the ``should'' to
``must'' change will generally pose a severe hardship for small
production facilities. As noted above, EPA has always interpreted the
``shoulds'' as ``musts.'' Further, when a particular requirement is not
feasible for a particular facility, under Sec. 112.7(a)(2) that
facility may explain the reasons for nonconformance with the
requirement, and provide alternate measures that achieve equivalent
environmental protection.

D. Professional Engineers (PEs)

Background. In the preamble to the 1991 proposal (56 FR 54618), EPA
posed several questions to commenters regarding how PEs could help to
implement the SPCC Plan. An owner or operator of a facility is required
to secure the certification of a PE on an SPCC Plan, and on technical
amendments to the Plan. By means of this certification, the PE attests
that the Plan or the amendment has been prepared in accordance with
good engineering practice.
1. State Registration
Background. We solicited comments on the advantages and
disadvantages associated with the PE being registered in the State in
which the facility is located. EPA noted that ``a requirement that a PE
be licensed in the State in which the facility is located would allow
the State licensing board to more easily address the actions of the PE
under its jurisdiction, and that the PE may have greater familiarity
with the State and local requirements related to the facility under
review.'' 56 FR 54619.
Comments. Favorable comments. Several commenters supported a
requirement that the PE be registered in the State in which the
facility is located. The rationales often expressed were that: (1)
Letting any PE certify any SPCC Plan effectively removed the PE from
the supervision of the State board; and, (2) familiarity with the State
and local requirements related to the facility as well as the State
itself are essential for viable SPCC Plans. One commenter suggested
that when an out-of-State PE prepares the Plan, the Plan should bear
the seal of the PE who prepared the Plan along with the seal of a PE
registered in the State in which the facility is located, assuring that
the proposed Plan conforms to any additional State requirements.
Opposing comments. Opposing commenters argued that: (1) A State
licensing board will address the actions of an engineer regardless of
the engineer's location when he applies his seal; (2) suggestions that
the potential liability of the engineer might be limited if the
engineer holds an out-of-State license are specious; (3) SPCC Plan

[[Page 47053]]

preparation is a Federal activity, therefore, it is unnecessary to have
State registration; and, (4) such a requirement would reduce the
available pool of qualified PEs. One commenter volunteered that the
proposal was ``superfluous'' because the practice of engineering in a
State without being professionally registered in that State is unlawful
in most States.
Response to comments. We agree with commenters that it is
unnecessary that the PE be registered or licensed in the State in which
the facility is located because any abuses will be corrected by the
licensing jurisdiction. We also agree that such a requirement might
unnecessarily reduce the availability of PEs and increase the cost of
certification without any tangible benefits. The professional liability
of a PE would likely be unaffected by the place of his registration.
When State law precludes a PE from applying his seal if he is not
licensed in that State, the question of State registration becomes
moot. However, that is not the case in every State.
We also disagree that if a PE is not licensed in the State, he will
be unfamiliar with State and local requirements for the facility. Any
PE may become familiar with both Federal and State and local
requirements for a facility. Therefore, to require that the PE be
registered in the State in which the facility is located would impose
unnecessary financial burdens on the facility and would challenge the
integrity of the PE. Such a requirement would also reduce the pool of
PEs available for facilities.
2. PEs Employed by the Facility
Background. EPA asked whether the rule should specify that the PE
not be an employee of the facility or have any other direct financial
interest in the facility. This request for comment had its origin in a
U.S. General Accounting Office (GAO) report issued on February 22,
1989, ``Inland Oil Spills: Stronger Regulation and Enforcement Needed
to Avoid Future Incidents'' (GAO/RCED-89-65).'' The GAO report
recommended that EPA evaluate the advantages and disadvantages of
requiring facilities to obtain certifications from independent
engineers. EPA noted that ``not having the PE otherwise associated with
the facility may avoid any potential conflicts of interest or
appearance of conflicts of interest that could arise from allowing an
employee of a regulated party to certify a SPCC Plan.'' 56 FR 54619. On
the other hand, for both the issues of whether to require State
registration and whether to allow PEs employed by the facility to
certify SPCC Plans, EPA noted that some organizations objected to the
proposals as ``challenging the integrity of professional engineers.''
56 FR 54619. We also pointed out that some professional organizations
believe that such requirements ``would impose substantial costs without
enhancing the integrity of the certification process.'' 56 FR 54619.
Comments. Favorable comments. Several commenters supported a
requirement that the PE not be an employee of the facility or not have
a direct financial interest in it. The rationales most often asserted
were: (1) A Plan would better satisfy regulatory objectives and better
serve the public; (2) the Plan would be less subject to compromise by
other factors; (3) Plan certification is less likely to be a coerced or
superficial effort, and undue economic and moral pressures would be
avoided; (4) more cooperative efforts among regulatory bodies,
engineers, and the facility would be possible; (5) more economic and
effective Plan development is assured; and, (6) more competent and more
professional Plan development is guaranteed.
Opposing comments. Opposing commenters asserted that: (1) Such a
proposal would limit the availability of PEs, leading to delays in Plan
certification; (2) administrative action to correct abuses would be a
better approach; and, (3) such an approach insults the ethical
integrity of PE. One commenter suggested that ``to suppose a facility
employee would break the law and jeopardize his license to practice his
profession and do it more willingly than an ``independent'' engineer
has no basis in fact'; (4) an in-house PE may be the person most
familiar with the facility; (5) the proposal would place an undue and
unnecessary financial burden on the owner or operator of a facility by
forcing him to hire an outside engineer; and, (6) it is uncertain
whether an independent PE can afford the insurance necessary to certify
his work given that the liability incurred might run into the millions
of dollars.
Compromise position. One commenter suggested that a compromise
position might be that the PE who certifies the Plan would be required
to disclose in the Plan certification his relationship to the facility
owner, the facility improvements owner, and the facility landowner.
Response to comments. We agree that a proposal to restrict
certification by a PE employed by a facility or having a financial
interest in it would limit the availability of PEs, possibly leading to
delays in Plan certification. Therefore, we will not adopt it. Nor do
we favor the proposal to require the PE to disclose his relationship to
the facility owner, the facility improvements owner, or the facility
landowner. Such disclosure would add no environmental protection to the
SPCC certification process. Administrative action to correct abuses
would be a better approach. We believe that most PEs, whether
independent or employees of a facility, being professionals, will
uphold the integrity of their profession and only certify Plans that
meet regulatory requirements. We also agree that an in-house PE may be
the person most familiar with the facility. EPA believes that a
restriction of in-house PE certification might place an undue and
unnecessary financial burden on owners or operators of facilities by
forcing them to hire an outside engineer.
3. Completion of Testing
Background. The Agency proposed that the PE must attest that
required testing has been completed and the Plan meets the requirements
of the regulation for the facility. This proposal was advanced to
``promote the Agency's intent in the original promulgation of
Sec. 112.3(d) that SPCC Plans be certified by a Registered Professional
Engineer exercising independent judgment.'' 56 FR 54619. These new
requirements were to be met when a new Plan is prepared after
promulgation of the rule, or when an existing Plan is amended, under
Sec. 112.5.
Comments. Favorable comments. One commenter supported a requirement
that the PE attest to the completion of testing and that the Plan meets
regulatory requirements.
Opposing comments. Some opposing commenters believed that the PE
should ``enumerate all the inspections and tests that have been
completed, plus those that should be completed before the facility
commences operations and those that should be undertaken periodically
after it commences operations.'' Others believed that completion of
required testing is the responsibility of the operator and not the PE.
Another commenter believed such a requirement would be impossible,
because ``required testing may take up to a year to complete.''
Response to comments. EPA agrees that the PE is not responsible for
certifying that all required testing has been completed. Rather, such
responsibility belongs to the owner or operator of the facility.
Testing may be ongoing long after the Plan is certified. The PE is
responsible for certifying that the Plan is adequate and meets all
regulatory requirements, including enumeration of all tests that have
been

[[Page 47054]]

completed, plus those that should be completed before the facility
commences operations and those that should be undertaken periodically
after it commences operations. Therefore, we are changing the proposed
requirement to a requirement in which the PE attests that the
procedures for required inspections and testing have been established,
and the Plan is adequate for the facility. See the discussion of
Sec. 112.3(d), below.
4. Site Visits
Background. We stated that EPA ``believes the current regulatory
language (e.g., requiring the engineer to examine the facility) clearly
requires the certifying Engineer to visit the facility prior to
certifying the SPCC Plan.'' We added that the proposed change
``clarifies this requirement by specifying that the Professional
Engineer must be physically present to examine the facility.'' 56 FR
54619.
Comments. Favorable comments. Many commenters favored the
requirement that the PE make a site visit prior to certifying a Plan.
Those commenters called such a visit ``absolutely necessary.'' Some
argued that a generic plan prepared by an engineer who has never seen
the facility is unacceptable.
Opposing comments. Opposing commenters asserted that such visits
only involve additional costs and duplication of efforts without any
tangible benefits. Many opposing commenters argued that customary
engineering practice includes the use of engineering technicians,
technologists, graduate engineers, and others to prepare preliminary
reports, studies, and evaluations. After preparation of these
documents, the PE would then perform a careful review of all pertinent
material and then sign and seal the appropriate plans and drawings.
Other commenters argued that such a requirement would be impractical,
particularly at electrical substations, due to their large number.
Particular cases. One commenter urged that small facilities be
exempted from the site visit requirement where ``a determination is
made that sufficient documentation of site characteristics is available
for plan certification.'' That commenter noted that in many instances
sufficient information is available from topographic maps, aerial
photographs, soil surveys, hydrologic studies, engineering and
construction reports, and local operating personnel to eliminate the
need for site visits prior to certification. Another commenter urged an
exemption for temporary storage facilities because given their
emergency nature, certification is impractical. One commenter asked for
clarification that the certification of an existing Plan is sufficient
until the Plan update is required. Another suggested that the rule
should only require that the PE be familiar with the operation and
design of the type of facility, and that he would have visited and
examined one or more facilities of this type.
Response to comments. In general. EPA agrees that the rule should
not necessarily require a site visit by a certifying PE, but we believe
that a site visit should occur before the PE certifies the Plan. We
have modified proposed Sec. 112.3(d)(ii) to reflect this position. The
PE's agent may perform the visit. We agree that customary engineering
practice allows someone under the PE's employ such as an engineering
technician, technologist, graduate engineer, or other qualified person
to prepare preliminary reports, studies, and evaluations after visiting
the site. Then the PE could legitimately certify the Plan.
Nevertheless, in all cases the PE must ensure that his certification
represents an exercise of good engineering judgment. If that requires a
personal site visit, the PE must visit the facility himself before
certifying the Plan.
Particular cases. EPA agrees that a PE site visit requirement might
be impractical at electrical substations, due to their large number.
However, the PE need not go. One of his agents may go, and he may
review the agent's work. We disagree with commenters who believe that a
site visit is unnecessary at small facilities and temporary storage
facilities. Site visits are necessary for those facilities to ensure
Plan adequacy and to prevent discharges.
EPA has interpreted the current rule language to contain a
requirement that the PE examine the facility. Because of the
uncertainty concerning the nature of this requirement, however, we will
not require documentation of a site visit by a PE or his agent until
after the effective date of this rule. We disagree that the rule should
only require that the PE be familiar with the operation and design of
the type of facility. We also disagree that merely because the PE has
visited and examined one or more facilities of a particular type that
no site visit is necessary. A facility may have individual
characteristics that differ from those of its type in general, and a
site visit by a PE or agent may be necessary to detect those
characteristics and accommodate them in the Plan. Such individual
characteristics include geographic conditions, possible flow paths,
facility design and construction, type of containers, product stored,
particular equipment, and the integrity of containment at the facility.
Therefore, even if a PE has inspected many facilities of a particular
type, that fact does not eliminate the need for a site visit at each
facility. After the site visit, the PE will have to devise appropriate
inspection and testing standards based on the facility's unique
characteristics.

E. Electrical Facilities and Other Operational Users of Oil

Background. In 1991, we proposed that certain facilities having
equipment containing oil that is used for operational purposes, such as
electrical transformers, would not have to comply with secondary
containment requirements and certain other provisions proposed in
Secs. 112.8(c) and 112.9(d) because such facilities are not bulk
storage facilities. EPA asked for comment on this and also asked
commenters to identify other possible operational uses of oil, other
than electrical transformers, that may not currently use secondary
containment as a common industry practice and that should not be
subject to bulk storage provisions. 56 FR 54623.
Comments. Use of oil. Numerous commenters, especially in the
electric utility industry, asserted that EPA has no jurisdiction to
regulate the operational use of oil generally, or specifically in
electrical transformers, substations, and other equipment. Some
manufacturers of other products agreed. They argued that the
legislative history of the Act showed no Congressional intent for such
regulation. However, many commenters asked EPA specifically to clarify
this jurisdictional issue.
Response to comments. Use of oil. We disagree that operational
equipment is not subject to the SPCC rule. We have amended
Sec. 112.1(b) to clarify that using oil, for example operationally, may
subject a facility to SPCC jurisdiction as long as the other
applicability criteria apply, for example, oil storage capacity, or
location. Such a facility might reasonably be expected to discharge oil
as described in Sec. 112.1(b). Therefore, the prevention of discharges
from such facility falls within the scope of the statute.
However, we have distinguished the bulk storage of oil from the
operational use of oil. We define ``bulk storage container'' in the
final rule to mean any container used to store oil. The storage of oil
may be prior to use, while being used, or prior to further distribution
in commerce. For clarity, we have specifically excluded oil-filled
electrical, operating, or manufacturing equipment from the definition.

[[Page 47055]]

Facilities that use oil operationally include electrical
substations, facilities containing electrical transformers, and certain
hydraulic or manufacturing equipment. The requirements for bulk storage
containers may not always apply to these facilities since the primary
purpose of this equipment is not the storage of oil in bulk. Facilities
with equipment containing oil for ancillary purposes are not required
to provide the secondary containment required for bulk storage
facilities (Sec. 112.8(c)) and onshore production facilities
(Sec. 112.9(c)), nor implement the other provisions of Sec. 112.8(c) or
Sec. 112.9(c). Oil-filled equipment must meet other SPCC requirements,
for example, the general requirements of this part, including
Sec. 112.7(c), to provide appropriate containment and/or diversionary
structures to prevent discharged oil from reaching a navigable
watercourse. The general requirement for secondary containment, which
can be provided by various means including drainage systems, spill
diversion ponds, etc., will provide for safety and also meet the needs
of section 311(j)(1)(C) of the CWA. EPA will continue to evaluate
whether the general secondary containment requirements found in
Sec. 112.7(c) should be modified for small electrical and other types
of equipment which use oil for operating purposes. We intend to publish
a notice asking for additional data and comment on this issue.
In addition, a facility may deviate from most SPCC requirements, if
the owner or operator explains his reasons for nonconformance and
provides equivalent environmental protection by some other means. See
Sec. 112.7(a)(2). See also Sec. 112.7(d).

F. Discretionary Provisions

Background. In the preamble to the 1991 proposal (at 56 FR 54616),
we asked for comments as to whether the provisions proposed as
recommendations in rule text should be made requirements. We then noted
that we were ``particularly interested in receiving comments and
information on the advisability of establishing'' certain provisions as
``requirements for large facilities, but as recommendations for small
facilities.'' These provisions were: (1) Proposed Sec. 112.8(d)(4)--
``that facilities have all buried piping tested for integrity and leaks
annually or have buried piping monitored monthly in accordance with the
provisions of 40 CFR part 280.'' We also recommended that records of
testing or monitoring be kept for five years.; and, (2) proposed
Sec. 112.8(d)(5)--``that facilities post vehicle weight restrictions to
prevent damage to underground piping.'' Individual proposals will be
discussed under their relevant sections in this preamble. Large
facilities were defined for this purpose as facilities with more than
42,000 gallons of SPCC-regulated storage capacity. Conversely, we asked
whether such provisions should be discretionary for smaller facilities.
The rationale expressed in the question was EPA believes that ``larger
volumes of oil stored at a facility increase the chances of a spill
occurring, and that spills from large-capacity facilities may be
greater in magnitude than those from smaller facilities, thus posing a
greater potential threat to the waters of the United States.''
EPA also requested comments on two other practices it proposed as
recommendations, but did not include in rule text. Those practices
were: (1) ``That owners and operators of facilities affix a signed and
dated statement to the SPCC Plan indicating that the revision has taken
place and whether or not amendment of the Plan is required;'' and, (2)
``That owners and operators of onshore facilities other than production
facilities state the design capabilities of their drainage system in
the SPCC Plan if the system is relied upon to control spills or
leaks.'' Concerning the first practice, see also the discussion under
Sec. 112.5(b) of today's rule. The rationale for these recommendations
was that ``these provisions may not for all facilities achieve the
standard of provisions based on good engineering practice, which is the
basic standard of the regulation. EPA, however believes that
implementation of these provisions at most facilities would contribute
to the facilities' overall effort to prevent oil discharge and to
mitigate those spills that may occur.'' The Agency also asked whether
some of these provisions should be mandatory.
Comments. Large or small facility regulation, in general. EPA
received a number of comments on this issue, some directed towards
regulation of larger and smaller facilities in general, and others
toward specific provisions proposed. Some commenters believed that
larger facilities could better bear the costs of regulation than
smaller facilities, some of which were financially marginal and might
go out of business as a result of environmental regulation.
Storage capacity level. Commenters suggested different storage
capacity levels at which to differentiate large from small facilities.
Those suggestions ranged from 10,000 to 100,000 gallons in storage
capacity. Many, however, supported the 42,000-gallon level.
Other factors. One commenter suggested that other factors such as
proximity to navigable waters or environmentally sensitive areas, as
well as the use of good engineering practices should be considered in
the regulation of facilities. The commenter argues that these factors
might avoid overburdening a large facility with a low potential for
impact on a navigable water or exempting a small facility with a high
potential for impact on a navigable water.
Discretionary provisions. Favorable commenters. Numerous commenters
favored discretionary provisions in the interest of maintaining
flexibility in the program, noting that what may be appropriate for one
facility may not be appropriate for another. Some commenters favored
applying discretionary provisions to small facilities only, leaving the
provisions as requirements for larger facilities.
Discretionary provisions. Opposing commenters. Some commenters
argued that discretionary provisions are inappropriate in a rule as a
matter of principle because they complicate mandatory rule documents
and enforcement, and they confuse the regulated community. Yet others
urged that such provisions were unnecessary in any case because they
believe that no risks exist for which the discretionary provisions were
proposed.
Response to comments. We will discuss specific comments under the
discussion of specific sections. See section IV.G of today's preamble
for a discussion of the ``Design Capabilities of Drainage Systems,
other than Production Facilities.'' Our general discussion follows.
Large or small facility regulation, in general. We have decided not
to regulate facilities differently based merely on storage capacity,
provided that the capacity is above the regulatory threshold of over
1,320 gallons. This decision is based on environmental reasons. Small
discharges of oil that reach the environment can cause significant
harm. Sensitive environments, such as areas with diverse and/or
protected flora and fauna, are vulnerable to small spills. EPA noted in
a recent denial of a petition for rulemaking: ``Small spills of
petroleum and vegetable oils and animal fats can cause significant
environmental damage. Real-world examples of oil spills demonstrate
that spills of petroleum oils and vegetable oils and animal fats do
occur and produce deleterious environmental effects. In some cases,
small spills of vegetable oils can produce more environmental harm than
numerous large spills of petroleum

[[Page 47056]]

oils.'' 62 FR 54508, 54530, October 20, 1997. Describing the outcome of
one small spill of 400 gallons of rapeseed oil into Vancouver Harbor,
we noted that `` * * * 88 oiled birds of 14 species were recovered
after the spill, and half of them were dead. Oiled birds usually are
not recovered for 3 days after a spill, when they become weakened
enough to be captured. Of the survivors, half died during treatment.
The number of casualties from the rapeseed oil spills was probably
higher than the number of birds recovered, because heavily oiled birds
sink and dying or dead birds are captured quickly by raptors and
scavengers.'' 62 FR 54525.
A small discharge may also cause harm to human health or life
through threat of fire or explosion, or short-or long-term exposure to
toxic components.
Other factors. Finally, EPA notes that the rule affords flexibility
to an owner or operator of a facility to design a Plan based on his
specific circumstances. It allows him to choose methods that best
protect the environment. It permits deviations from most of the
mandatory substantive requirements of the rule when the facility owner
or operator can demonstrate a reason for nonconformance, and can
provide equivalent environmental protection by other means.
Consequently, both small and large facilities have the opportunity to
reduce costs by alternative methods if they can maintain environmental
protection. Because smaller facilities may require less complex plans
than larger ones, their costs may be less.
Discretionary provisions. We agree that discretionary provisions
have no place in this rule because we do not wish to confuse the
regulated community and complicate enforcement by blurring what is
mandatory and what is discretionary. We will provide guidance or policy
statements on various issues, as necessary, that will incorporate some
or all of these recommendations. In the absence of such guidance or
policy statements, you should look to current industry standards for
guidance on technical issues. See also our discussion of industry
standards and good engineering practice under section IV.K of today's
preamble and under Sec. 112.3(d) in section V of today's preamble.

G. Design Capabilities of Drainage Systems, Other than Production
Facilities

Background. In the 1991 preamble, we asked for comments on, but did
not propose, a provision that owners or operators of onshore facilities
other than production facilities describe the design capabilities of
their drainage systems in the SPCC Plan if the system is relied upon to
control spills or leaks. 56 FR 54616, October 22, 1991. See also
section IV.F of today's preamble for a discussion of other
``Discretionary Provisions.''
Comments. Favorable comments. Commenters favoring such a
requirement asserted that such a description would help identify all
paths of escape for discharges at a facility, assess the spill
retention capacity of the facility's containment system, and identify
the risks to the public of a discharge. Those commenters generally
believed that the Professional Engineer should develop the description
for the Plan.
Opposing comments. Commenters opposing making the recommendation a
requirement argued that it was unnecessary because the rules already
require certain descriptions of design capabilities of drainage
systems. They asserted that such a requirement would be redundant in
that if a drainage system is relied upon to control spills or leaks,
then it must have design capabilities to control such spills or leaks.
Response to comments. The question of description of the design
capabilities of drainage systems for onshore facilities other than
production facilities is adequately covered by rules pertaining to
drainage. See, for example, Secs. 112.7(a)(3) and (4), 112.7(b),
112.8(b), and 112.10(c). Therefore, we will not promulgate any
additional requirements on this subject. These provisions generally
require that a facility owner or operator design the facility drainage
system to prevent discharges, or if prevention fails, to contain the
discharge within the facility.

H. Compliance Costs

Background. We provided an extensive discussion of the costs and
benefits of the proposed 1991 rule. 56 FR 54628-54629, October 22,
1991. We requested comments in the 1991 preamble concerning the new
compliance costs associated with the proposed rule.
Comments. EPA received numerous comments on this issue. The
overwhelming majority of commenters asserted that the proposed rule
would impose costs that few could bear. Many argued that such costs
were unnecessary or should be applied to large facilities only.
Response to comments. EPA considered cost factors in finalizing the
requirements in this rule. We believe that facilities in compliance
with the current rule will incur minimal additional cost due to the
revisions in this rule. Many of the provisions we proposed in 1991 that
commenters believed were too costly were not finalized in this rule. In
addition, in today's rule, we have provided flexibility in several
ways. Many of the provisions we proposed in 1991 that commenters
believed were too costly were not finalized in this rule. In addition,
in the deviation provision, Sec. 112.7(a)(2), we permit you to
substitute alternate measures that provide equivalent environmental
protection if you can explain a reason for nonconformance with the
prescribed requirement. We also rely on the use of industry standards
in many provisions, rather than mandating any particular procedure, or
any particular monitoring or inspection schedule. We assume that most
facilities follow industry standards, and therefore will not incur
additional costs for many provisions where they do. We recognize,
however, that to the extent any facility does not follow current
industry standards, it might incur additional costs. Furthermore, we
are finalizing other provisions in this rule which will reduce burden
in other ways and will exempt certain facilities from having to prepare
an SPCC or FRP Plan. EPA has also prepared an assessment of the costs
of rule compliance, which is discussed in part VI.F (Regulatory
Flexibility Act) of this preamble, and we have included the specific
comments related to costs and our responses in relevant sections of
this preamble.

I. Contingency Planning and Notification

Background. We requested comments in the 1991 preamble on spill
contingency planning needs (at 56 FR 54615) and on proposed facility
notification requirements (at 56 FR 54614). You will find a detailed
discussion of contingency requirements and facility notification
requirements (Sec. 112.7(d) and proposed Sec. 112.1(e)) in Section V of
today's preamble. On those subjects, we briefly summarize the comments
and our responses below.
Comments. Contingency planning. Many commenters supported the 1991
proposal. Opposing commenters suggested that such planning should be
discretionary because not all facilities need such planning, or that
facilities be allowed to use contingency plans prepared for other
purposes. Others thought the proposal was premature as we had not at
the time finalized response planning requirements in Sec. 112.20. Some
said that contingency planning was not practicable because

[[Page 47057]]

the costs are too high, but these commenters did not provide specific
cost estimates.
Notification. A number of commenters favored the proposal,
including some industry commenters. Most industry commenters opposed
the proposal either in part or in its entirety. Commenters who opposed
the proposal in its entirety asserted that it was unnecessary, largely
because they believed the information sought might be better obtained
from other sources, such as State sources or SARA Title III reports.
Response to comments. Contingency planning. Contingency planning is
necessary whenever you determine that a secondary containment system
for any part of the facility that might be the cause of a discharge as
described in Sec. 112.1(b) is not practicable. This requirement applies
whether the facility is manned or unmanned, urban or rural, and for
large and small facilities. Because we have not finalized either the
1991 or 1993 contingency plan proposals, there are no new costs. We
note that we finalized response planning requirements in 1994.
Contingency plans prepared for other purposes are acceptable for SPCC
purposes if they satisfy all SPCC requirements.
Notification. Withdrawal of proposal. We have decided to withdraw
the proposed facility notification requirement because we are still
considering issues associated with establishing a paper versus
electronic notification system, including issues related to providing
electronic signatures on the notification. Should the Agency in the
future decide to move forward with a facility notification requirement,
we will repropose such requirement.

J. Reproposal

Background: In the 1997 proposal, we stated that we would finalize
the 1991 and 1993 proposals without seeking additional comments on
those proposals.
Comments: Some commenters suggested that we repropose the 1991
proposal ``so that the public can view the proposed changes in a
comprehensive manner.'' Other commenters suggested that the time that
has elapsed, the changes in operational procedures of the oil and gas
industry which have improved the degree of environmental protection,
and the new information EPA obtained from its tank survey, justified
reproposal. Others cited changes in oil industry personnel as a reason
to repropose the rule. Some commenters believed that the implementation
of the Facility Response Plan (FRP) rule alone requires us to solicit
additional comments concerning the SPCC proposals.
Response: Additional comments or reproposal. We believe it is
unnecessary to repropose the 1991 and 1993 proposals because of mere
passage of time. We received numerous comments on every side of most
issues. In developing this final rule, we have considered changes that
have taken place in the oil industry, industry standards, and
regulations that may affect the SPCC rule. We have also considered
changes in the various industries which comprise the universe of SPCC
facilities which have occurred since our original proposals. We
encourage the use of industry standards to implement the rule, without
incorporating any particular standard into the rule, thereby averting
possible obsolescence of those standards. We used the results of our
1995 SPCC facility survey to develop our 1997 proposed rule. These
results are also part of the administrative record for this rulemaking.
We considered all the comments we received in 1997, even if they dealt
with issues proposed in 1991 or 1993. We have also considered and
responded to all of the comments received in 1991 and 1993 in their
respective Comment Response Documents or in the preamble to today's
final rule.
Personnel changes. In developing this final rule, as noted above,
we have considered changes that have taken place in the oil industry,
industry standards, and regulations that may affect the SPCC rule. For
the past 26 years, owners and operators of regulated facilities have
been responsible for training their personnel in applicable
regulations, such as 40 CFR part 112. Such responsibility is in effect
now, and will continue under the revised rule. New companies and new
personnel of those companies are on notice as to applicable rules and
proposals. They have also had the opportunity to comment on the 1997
proposal. Furthermore, we have considered cost implications for all
three proposals which we are finalizing today.
Response plan requirements. We have no plans to require SPCC
facilities for which secondary containment is not practicable to
develop response plans. However, we have withdrawn Sec. 112.7(d) as
proposed in 1993. Only a contingency plan following the provisions of
40 CFR part 109 and compliance with other provisions of Sec. 112.7(d)
is necessary when secondary containment is impracticable. Only onshore
facilities that meet the criteria of substantial harm and/or
significant and substantial harm facilities need to comply with the FRP
requirements in 40 CFR 112.20-21.

K. Industry Standards

Throughout the rule we generally allow for the application of
industry standards where the standards are both specific and objective,
and their application may reduce the risk of discharges to and impacts
to the environment. We recognize that as technology advances, specific
standards change. By referencing industry standards throughout the
preamble, we anticipate that the underlying requirements of the rule
itself will change as new technology comes into use without the need
for further amendments. We believe that industry standards today
represent good engineering practice and generally are environmentally
protective. However, as under the current rule, if an industry standard
changes in a way that would increase the risk of a discharge as
described in Sec. 112.1(b), EPA will apply and enforce standards and
practices that protect the environment, rather than the less protective
industry standard.
Under the terms of this rule, when there is no specific and
objective industry standard that applies to your facility (for example,
whether there is no standard or a standard that uses the terms ``as
appropriate,'' ``often,'' ``periodically,'' and so forth), you should
instead follow any specific and objective manufacturer's instructions
for the use and maintenance or installation of the equipment,
appurtenance, or container. If there is neither a specific and
objective industry standard nor a specific and objective manufacturer's
instruction that applies, then it is the duty of the PE under
Sec. 112.3(d) to establish such specific and objective standards for
the facility and, under Sec. 112.3(d), he must document these standards
in the Plan. If the PE requires the use of a specific standard for
implementation of the Plan, the owner or operator must also reference
that standard in the Plan.
Throughout this preamble, we list industry standards that may
assist an owner or operator to comply with particular rules. The list
of those standards is merely for your information. They may or may not
apply to your facility, but we believe that their inclusion is helpful
because they generally are applicable to the topic referenced. The
decision in every case as to the applicability of any industry standard
will be one for the PE.
For your convenience, we are including a list of organizations
below

[[Page 47058]]

that may be helpful in the identification and explanation of industry
standards.

----------------------------------------------------------------------------------------------------------------
Name Address Phone # Web Site/E-mail
----------------------------------------------------------------------------------------------------------------
American National Standards 11 West 42nd Street, New 212-642-4900............ www.ansi.org
Institute (ANSI). York, NY 10036. 212-398-0023 fax........ ansionline@ansi.org
American Petroleum Institute 1220 L Street, NW 202-682-8000............ www.api.org
(API). Washington, DC 20005. 202-682-8232 fax........ standards@api.org
American Society of Mechanical Three Park Avenue New 800-843-2763............ www.asme.org
Engineers (ASME). York, NY 10016-5990. 973-882-1717 fax........ infocentral@asme.org
American Society for PO Box 28518, 1711 800-222-2768............ www.asnt.org
Nondestructive Testing (ASNT). Arlingate Lane Columbus, 614-274-6899 fax........
OH 43228-0518.
American Society for Testing and 100 Barr Harbor Drive, 610-832-9585............ www.astm.org
Materials (ASTM). West Conshohocken, PA 610-832-9555 fax........ webmastr@astm.org.
19428-2959.
Building Officials and Code 4051 West Flossmoor Road 708-799-2300............ www.bocai.org
Administrators (BOCA) Country Club Hills, IL 708-799-4981 fax........ webmaster@bocai.org.
International. 60478.
International Code Council (ICC). 5203 Leesburg Pike, Suite 703-931-4533............ www.intlcode.org
708 Falls Church, VA 703-379-1546 fax........ staff@intlcode.org.
22041.
International Conference of 5360 Workman Mill Road 888-699-0541............ www.icbo.org
Building Officials (ICBO). Whittier, CA 90601-2298. 888-329-4220 fax........
International Fire Code Institute 5360 Workman Mill Road 562-699-0124............ www.ifci.org
(IFCI). Whittier, CA 90601-2298. 562-699-8031 fax........ webmaster@icbo.org
Manufacturers Standardization 127 Park Street, N.E. 703-281-6613............ www.mss-hq.com
Society of The Valve and Vienna, VA 22180-4602. 703-281-6671 fax........ info@mss-hg.com
Fittings Industry Inc. (MSS).
National Association of Corrosion 1440 South Creek Drive 281-228-6200............ www.nace.org
Engineers (NACE). Houston, TX 77084. 281-228-6300 fax........
National Fire Protection 1 Batterymarch Park PO 617-770-3000............ www.nfpa.org
Association (NFPA). Box 9101 Quincy, MA 617-770-0700 fax........ hazchem@nfpa.org
02269-9101.
Petroleum Equipment Institute P.O. Box 2380 Tulsa, OK 918-494-9696............ www.pei.org
(PEI). 74101-2380. 918-491-9895 fax........ pei@peinet.org.
Southern Building Code Congress 900 Montclair Road 205-591-1853............ www.sbcci.org
International (SBCCI). Birmingham, AL 35213- 205-591-0775 fax........ info@sbcci.org
1206.
Southwest Research Institute P.O. Box Drawer 28510 San 210-684-5111............ www.swri.org
(SwRI). Antonio, TX 78228-0510. action67@swri.org
Steel Tank Institute (STI)....... 570 Oakwood Road Lake 847-438-8265............ www.steeltank.com
Zurich, IL 60047. 847-438-8766 fax........ ankiefer@steeltank.com
Underwriters Laboratories (UL)... 333 Pfingsten Road 847-272-8800............ www.ul.com
Northbrook, IL 60062- 847-272-8129 fax........ northbrook@ul.com
2096.
Western Fire Chiefs Association 300 N. Main St. # 760-723-6911............ www.wfca.com
(WFCA). 25 Fallbrook, CA 92028. 760-723-6912 fax........ wfcadmin@wfca.com
----------------------------------------------------------------------------------------------------------------

V. Section by Section Analysis (Includes: Background, Comments, and
Response to Comments)

Subpart A--Applicability, definitions, and general requirements for all
facilities

Background. In the reformatted rule, subpart A defines the
applicability of part 112, provides definitions applicable to all
subparts, and prescribes general requirements that are applicable to
all facilities subject to part 112.

Section 112.1(a)(1)--General Applicability of the Rule

Background. We have redesignated Sec. 112.1(a) as Sec. 112.1(a)(1)
due to the addition of a new paragraph (a)(2). In 1991, we proposed
changes in Sec. 112.1(a) to conform to the 1977 CWA amendments. Those
amendments extended the geographic scope of EPA's authority under CWA
section 311. Formerly the geographic scope of the rule extended only to
navigable waters of the United States and adjoining shorelines. The
final rule extends the geographic scope of EPA's authority beyond
discharges to navigable waters and adjoining shorelines to include a
discharge into or upon the waters of the contiguous zone, or in
connection with activities under the Outer Continental Shelf Lands Act
or the Deepwater Port Act of 1974, or that may affect natural resources
belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the Magnuson
Fishery

[[Page 47059]]

Conservation and Management Act). Hereinafter, a discharge as described
above in quantities that may be harmful is also referred to as ``a
discharge as described in Sec. 112.1(b).''
Comments. Geographic scope of rule. One commenter wrote to support
the geographic extension of the rule, noting that the extended
definition ``will allow for more clarity in determining which
facilities are subject to SPCC requirements.''
Natural resources. Another commenter was concerned that the
extension of the rule to facilities with the potential to affect
natural resources ``would bring under the scope of 40 CFR 112 a
significant number of operating facilities which did not previously
require SPCC plans.'' Still another commenter proposed limiting the
scope of natural resource jurisdiction under the rule to resources
under the Magnuson Fishery and Conservation Act to avoid ``another
unnecessary workload on the judicial system over the years.''
Response to comments. Geographic scope of rule. EPA believes that
the geographic extension of the rule to agree with statutory amendments
is the proper course, and has finalized the rule as proposed.
Natural resources. Limiting the scope of natural resource
jurisdiction under the rule to natural resources under the Magnuson
Fishery Conservation and Management Act would be inconsistent with this
statutory language. We also believe that few, if any new facilities,
will be subject to the rule because of its extension to facilities with
the potential to affect certain natural resources. We believe that most
affected facilities are either already subject to the rule, or not
subject to our jurisdiction due to a Memorandum of Understanding
between EPA, the U.S. Department of Transportation (DOT), and the U.S.
Department of the Interior (DOI), which assigns jurisdiction over most
of those facilities to DOT or DOI. See 40 CFR part 112, Appendix B.
Editorial changes and clarifications. While revisions to the rule
published today are not retroactive, any violation of the current rule
which occurs before the effective date of today's rule is subject to
enforcement and penalties.

Section 112.1(a)(2)--Number and Gender

Background. We added a new Sec. 112.1(a)(2) to make clear that
words in the singular include the plural, and words in the masculine
include the feminine, and vice versa. This amendment is for
clarification purposes only.

Section 112.1(b)--Facilities Covered by the Rule--Non-Transportation-
Related Facilities

Background. We have redesignated this section to add four new
paragraphs. This section describes generally the type of facilities
which are subject to the SPCC rule.
In 1991, EPA proposed changes in Sec. 112.1(b) to reflect changes
in the geographic scope of EPA's authority under CWA section 311, as
described in the discussion under Sec. 112.1(a)(1). EPA also proposed
to change the phrase ``harmful quantities'' to ``quantities that may be
harmful, as described in part 110.'' Amendments to the CWA also
reflected the broadening of quantities that may be harmful to include
those not only harmful to the ``public health or welfare,'' but also to
the environment.
Comments. Facilities. Several commenters argued that EPA
jurisdiction, under statutory authority, does not extend to facilities,
merely to requirements for oil spill prevention and containment
equipment. The commenters' argument noted that the statute doesn't
mention jurisdictional criteria relating to proximity to water or oil
storage capacity, only EPA rules do. Therefore, the commenters argued,
if EPA is successful in its assertion of facility regulation, then
every pipe, valve, meter, and flange on the wellsite along with tubing
and casing in the hole, stock tanks, drainage ditches, and roads are
all subject to EPA jurisdiction and specifications. More importantly,
they argued, every facility, in every industry, which at some time or
other handles oil or hazardous substances could be subject to EPA rules
concerning its spill prevention and containment procedures, methods, or
equipment.
Use of oil. Numerous commenters, especially in the electric utility
industry, asserted that EPA has no jurisdiction to regulate the
operational use of oil generally, or specifically in electrical
transformers, substations, and other equipment. Some manufacturers of
other products agreed. They argued that the legislative history of the
Act showed no Congressional intent for such regulation. However, many
commenters asked EPA specifically to clarify this jurisdictional issue.
Distance to navigable waters. Two commenters proposed that we
exempt from the rule facilities more than one mile from surface waters
or those located outside the coastal zone.
Response to Comments: Facilities. We disagree that our authority
does not extend to facilities. Section 311(j)(1)(C) of the statute
authorizes and requires the President (and EPA, through delegation in
Executive Order 12777, 56 FR 54757, October 22, 1991) to issue
regulations consistent with the National Oil and Hazardous Substances
Pollution Contingency Plan, and consistent with maritime safety and
with marine and navigation laws, which establish ``procedures, methods,
and equipment and other requirements for equipment to prevent
discharges of oil and hazardous substances from vessels and from
onshore and offshore facilities, and to contain such discharges.'' This
language authorizes the President to issue oil spill prevention rules
which pertain to onshore facilities and offshore facilities and not
just ``equipment.''
In order to fulfill the statutory mandate, it is necessary to
regulate the facilities from which discharges emanate. Moreover,
although the term ``facility'' is not defined in the statute, both
``onshore facility'' and ``offshore facility'' are defined terms in CWA
section 311. They have also been defined terms in the SPCC rule since
its inception in 1974. In the 1991 proposal, EPA proposed a definition
of ``facility'' to implement the CWA. That definition was based on a
Memorandum of Understanding (MOU) between the Secretary of
Transportation and the EPA Administrator dated November 24, 1971 (36 FR
24080). The MOU, which has been published as Appendix A to part 112
since December 11, 1973 (38 FR 34164, 34170), defines in detail what
constitutes a facility. Thus, there has long been a common
understanding of the term. That understanding has been reinforced by
frequent use of the term in context within the SPCC rule since it
became effective in 1974. To promote clarity and to maintain all
definitions in one place, the proposed definition has been finalized in
this rulemaking.
While section 311(j)(1)(C) of the Act may not explicitly mention
jurisdictional criteria, section 311(b) of the Act does. Section 311(b)
establishes as the policy of the United States that there shall be ``no
discharges of oil or hazardous substances into or upon the navigable
waters of the United States, adjoining shorelines, or into or upon the
waters of the contiguous zone, or in connection with activities under
the Outer Continental Shelf Lands Act or the Deepwater Port Act of
1974, or which may affect natural resources belonging to, appertaining
to, or under the exclusive management authority of the United States
(including resources under the Magnuson Fishery Conservation and
Management Act).'' Thus, the location or ``jurisdictional'' criteria
contained in Sec. 112.1(b) are appropriate for inclusion in the rule.

[[Page 47060]]

Use of oil. We disagree that operational equipment is not subject
to the SPCC rule. We have amended Sec. 112.1(b) to clarify that using
oil, for example operationally, may subject a facility to SPCC
jurisdiction as long as the other applicability criteria apply, for
example, oil storage capacity, or location. Such a facility might
reasonably be expected to discharge oil as described in Sec. 112.1(b).
Therefore, the prevention of discharges from such facility falls within
the scope of the statute.
However, we have distinguished the bulk storage of oil from the
operational use of oil. We define ``bulk storage container'' in the
final rule to mean any container used to store oil. The storage of oil
may be prior to use, while being used, or prior to further distribution
in commerce. For clarity, we have specifically excluded oil-filled
electrical, operating, or manufacturing equipment from the definition.
Facilities that use oil operationally include electrical
substations, facilities containing electrical transformers, and certain
hydraulic or manufacturing equipment. The requirements for bulk storage
containers may not always apply to these facilities since the primary
purpose of this equipment is not the storage of oil in bulk. Facilities
with equipment containing oil for ancillary purposes are not required
to provide the secondary containment required for bulk storage
facilities (Sec. 112.8(c)) and onshore production facilities
(Sec. 112.9(c)), nor implement the other provisions of Sec. 112.8(c) or
Sec. 112.9(c). Oil-filled equipment must meet other SPCC requirements,
for example, the general requirements of this part, including
Sec. 112.7(c), to provide appropriate containment and/or diversionary
structures to prevent discharged oil from reaching a navigable
watercourse. The general requirement for secondary containment, which
can be provided by various means including drainage systems, spill
diversion ponds, etc., will provide for safety and also the needs of
section 311(j)(1)(C) of the CWA.
In addition, a facility may deviate from any inappropriate SPCC
requirements, if the owner or operator explains his reasons for
nonconformance and provides equivalent environmental protection by some
other means. See Sec. 112.7(a)(2). See also Sec. 112.7(d).
Distance to navigable waters. We do not believe that any rule which
exempts facilities beyond any particular distance meets the intent of
the statute. The locational standard in the rule is whether there is a
reasonable possibility of discharge in quantities that may be harmful
from the facility. A facility that is more than one mile from navigable
waters might well fit within that standard. For example, piping or
drainage from that facility might lead directly to navigable water. If
discharged oil may reach or does reach navigable waters, adjoining
shorelines, or protected resources, the distance which the discharged
oil travels is irrelevant.
Editorial changes and clarifications. In the proposed rule, this
paragraph was designated as Secs. 112.1(b) and 112.1(b)(1). We have
combined the paragraphs and added two new paragraphs. The new
paragraphs describe the types of containers subject to the rule, which
in addition to the two paragraphs we already proposed, better describe
those containers. We also changed plural references in the proposal to
singular throughout the section.

Section 112.1(b)(1)--Aboveground Storage Containers

Background. We added this paragraph to clarify that aboveground
storage containers are a subset of the containers subject to the rule.
In 1991, we noted that containers used for standby storage, temporary
storage, or containers that are not permanently closed, are subject to
the rule. We also noted that bunkered tanks and partially buried tanks
are subject to the rule. The inclusion of this paragraph and paragraph
(b)(2), which refers to completely buried tanks, completes the universe
of containers subject to the rule.

Section 112.1(b)(2)--Completely Buried Tanks

Background. We added this paragraph to clarify that completely
buried tanks are a subset of the containers subject to the rule. See
also the discussion under Sec. 112.1(b)(1).

Section 112.1(b)(3)--Standby, Temporary, or Seasonal Storage Facilities

Background. We proposed in 1991 to clarify that tanks used for
standby, temporary, or seasonal storage, or that are not otherwise
permanently closed, are subject to the SPCC rule. The Agency noted that
such tanks are not permanently closed and can reasonably be expected to
experience a discharge as described in Sec. 112.1(b). 56 FR 54617. The
facilities described in Sec. 112.1(b)(3) are a subset of the facilities
described in Sec. 112.1(b)(1) and (b)(2).
Comments. One commenter asserted that temporarily closed tanks
should be exempted from the rules because they are required to be
drained and, while awaiting temporary closure, are no threat to the
environment through oil spills. Another commenter urged that temporary
storage facilities should be exempted from the SPCC rule, and handled
under the Facility Response Plan (FRP) rules, found at 40 CFR 112.20-
21. A third commenter argued that frac tanks, used to store oil for the
short periods of time while maintenance or workover operations are
underway, should be exempted from the rule because their use is of
short duration and does not necessarily increase the potential for
discharge. Another commenter stated that it would be impractical to
maintain an up-to-date SPCC Plan for temporary storage at remote parts
of a large mining operation.
Response to comments. If a tank is not permanently closed, it is
still available for storage and the possibility of a discharge as
described in Sec. 112.1(b), remains. Nor does a short time period of
storage eliminate the possibility of such a discharge. Therefore, a
prevention plan is necessary. A tank closed for a temporary period of
time may contain oil mixed with sludge or residues of product which
could be discharged. Discharges from these facilities could cause
severe environmental damage during such temporary storage and are
therefore subject to the rule. As to the argument that it is
impractical to maintain an up-to-date Plan for temporary facilities at
remote parts of mining sites, we disagree. Plans for such storage are
analogous to or may be Plans for mobile facilities, which may be
general Plans, but still provide environmental protection against a
discharge as described in Sec. 112.1(b).
Editorial changes and clarifications. In the proposed rule, this
paragraph was designated as Sec. 112.1(b)(2). We have redesignated it
as Sec. 112.1(b)(3).

Section 112.1(b)(4)--Bunkered, Partially Buried, and Vaulted Tanks

Background. In 1991, we proposed to clarify that bunkered tanks,
partially buried tanks, and tanks in subterranean vaults are considered
aboveground tanks for purposes of the SPCC rule. The tanks or
containers in these facilities are a subset of the facilities described
in Sec. 112.1(b)(1). The Agency explained that compared to completely
buried tanks, discharges from these tanks are more likely to enter
surface waters regulated under the CWA. 56 FR 54626.
Comments. Partially buried and bunkered tanks. A commenter
suggested that partially buried and bunkered tanks should be considered
underground storage tanks (USTs) and regulated under that program
because ten percent

[[Page 47061]]

or more of the product is below grade either in the tank or in the
pipeline. The commenter argued that tanks in compliance with the UST
program, found at 40 CFR part 280, would not pose a significant threat
to the environment. In fact, the commenter argued, they might be less
likely to cause a spill than one in compliance with the SPCC rule. The
commenter further argued that dual regulation would be unnecessarily
burdensome without providing any additional environmental protection.
Vaulted tanks. Several commenters asserted that since vaulted tanks
are already regulated by fire and safety authorities, they should not
be regulated under the SPCC program. Others argued that vaulted tanks
meeting the technical requirements of 40 CFR part 280, or which have
engineering controls designed to contain product released from failure
or overfill, should likewise be exempted from the SPCC rule. These
commenters asserted that a discharge from such tanks would not reach
water.
Response to comments. Partially buried and bunkered tanks. We
disagree that partially buried tanks and bunkered tanks should be
considered completely buried tanks, and therefore excluded from SPCC
provisions. The rules differ in important aspects. Tanks which are
partially underground pose a risk of a discharge as described in
Sec. 112.1(b), which could have an adverse impact on navigable water,
adjoining shorelines, or affected resources. Some tanks that are not
completely buried contain engineering controls designed to prevent
discharges. However, such controls may fail due to human or mechanical
error and cause severe environmental damage. Such tanks may suffer
damage caused by differential corrosion of buried and non-buried
surfaces greater than completely buried tanks, which could cause a
discharge as described in Sec. 112.1(b).
Such tanks are also not subject to secondary containment
requirements under part 280 or a State program approved under 40 CFR
part 281. There may also be accidents during loading or unloading
operations, or overfills resulting in a discharge to navigable waters
and adjoining shorelines. Furthermore, a failure of such a tank (caused
by accident or vandalism) would be more likely to cause a discharge as
described in Sec. 112.1(b). We will, however, accept UST program forms,
e.g., the Notification for Underground Storage Tanks, EPA Form 7530-1,
or approved State program equivalents, insofar as such forms contains
information relevant to the SPCC program. For example, the UST form
(item 12) contains information regarding corrosion protection for steel
tanks and steel piping which would be relevant for SPCC purposes. Other
items on the form may also be relevant for SPCC purposes. We are,
however, excluding from the rule completely buried storage tanks
(including connected underground piping, underground ancillary
equipment, and containment systems) that are currently subject to all
of the technical requirements of 40 CFR part 280 or 281. See
Sec. 112.1(d)(4).
Vaulted tanks. Vaulted tanks are generally excluded from the scope
of 40 CFR part 280. The definition of ``underground storage tank'' at
40 CFR 280.12(i) excludes from its scope a ``storage tank situated in
an underground area (such as a basement, cellar, mineworking, drift,
shaft, or tunnel) if the storage tank is situated upon or above the
surface of the floor.'' These tanks might reasonably experience a
discharge as described in Sec. 112.1(b). Therefore, it is reasonable
that they be within the scope of part 112. Merely because these tanks
are the subject of local fire and safety regulations does not guarantee
that there will be adequate environmental protection to prevent a
discharge as described in Sec. 112.1(b), because that is not the
purpose of those regulations. Such codes may provide lesser protection
than part 112. For example, NFPA 30:2-3.4.3(b) specifically indicates
that a dike need only provide containment for the largest tank, while
part 112 requires freeboard for precipitation.
Editorial changes and clarifications. In the proposed rule, this
paragraph was designated as Sec. 112.1(b)(3). We have redesignated it
as Sec. 112.1(b)(4). Section 112.1(b)(3) of the proposed rule uses the
term ``aboveground storage containers,'' in place of ``aboveground
storage tanks.'' See 56 FR 54630. We continue to use ``containers'' in
the final rule. We deleted the word ``subterranean,'' which modified
vaulted tanks in the proposed rule, because vaulted tanks are
considered aboveground tanks under this rule whether they are
subterranean or not.

Section 112.1(c)--Federal Agencies--Applicability of Rule

Background. In 1991, we republished the already existing provisions
of Sec. 112.1(c), which provide that agencies, departments, and
instrumentalities of the Federal government are subject to the rule to
the same extent as any person, except for the provisions relating to
civil penalties. The provision relating to civil penalties was
rescinded on March 11, 1996, because it no longer accurately reflected
the penalties provided for under section 311(b) of the Act, as amended
by OPA. 61 FR 9646. Therefore, we have reserved Sec. 112.6 for future
use.
Comments. One commenter suggested that Federal agencies are subject
to civil penalties which are imposed under the CWA--including fines.
Response to comments. EPA disagrees that Federal agencies are
subject to penalties or fines under the CWA because the Federal
government is not a ``person'' under sections 311(a)(7) or 502 of the
CWA. Only ``persons'' (including owners or operators and persons in
charge) are subject to such penalties. Therefore, although Federal
agencies must comply with requirements of a CWA section 311 rule in
accordance with CWA section 313, they are not subject to civil or
criminal penalties or fines. See U.S. Department of Energy v. Ohio, 503
U.S. 607, 618 (1992) (because the CWA does not define ``person'' to
include the United States, the civil penalty provisions are not
applicable).

Section 112.1(d)--Exemptions From Applicability

Section 112.1(d)(1)--Exemptions Based on Jurisdiction

Section 112.1(d)(1)(i)--Exemptions Based on Location

Background. In 1991, we described the facilities, equipment, and
operations that are exempt from the SPCC rule because they are not
subject to the jurisdiction of EPA under section 311(j)(1)(C) of the
Act. These facilities include those which, due to their location, could
not be reasonably expected to have a discharge as described in
Sec. 112.1(b).
In making the determination of whether there is a reasonable
possibility of a discharge as described in Sec. 112.1(b), we proposed
that you may consider only the geographical and locational aspects of
the facility (such as proximity to navigable waters or adjoining
shorelines, land contour, drainage, etc.). We proposed that you could
not consider manmade structures such as dikes, equipment, or other
structures which may serve to restrain, hinder, or otherwise contain a
discharge as described in Sec. 112.1(b), in making that same
determination.
Comments. Geographic scope of rule. One commenter agreed that the
extension of the geographic scope of the rule will allow for more
clarity in determining which facilities are subject to SPCC
requirements. The commenter added that the inclusion of natural

[[Page 47062]]

resources sets the stage for the implementation of Natural Resource
Damage Assessments, as required by the Oil Pollution Act of 1990.
Manmade structures. Other commenters argued that EPA should modify
its rules to provide that a facility with no reasonable possibility of
discharge because of some combination of natural and manmade features,
which are present for operational rather than pollution prevention
purposes, should be excluded from the scope of the rule. Another
commenter urged that the rule allow consideration of manmade structures
where the structures are inherent in the design of the facility and
serve functional and operational purposes distinct from the containment
of oil spills.
Groundwater. Another commenter argued that Congress intended for
EPA to develop SPCC requirements that prevent releases to groundwater,
in addition to requirements that prevent releases to navigable water.
At a minimum, that commenter argued, Sec. 112.1(d)(1)(i) should contain
language stating that clear hydrologic connections between groundwater
underlying a facility and navigable waters require a facility to
develop and implement an SPCC Plan. Yet another commenter, in opposing
exemption of USTs from the SPCC program noted that groundwater
eventually becomes surface water. The commenter added that,
hydrologically, oil released into underground waters may migrate to
surface water within minutes or months. The commenter argued that in
the absence of emergency response provisions, some USTs could damage
the nation's ground and surface water resources.
Response to comments. Geographic scope of rule. We also believe
that few, if any, new facilities will be subject to the rule because of
its extension to facilities with the potential to affect certain
natural resources. We believe that most affected facilities are either
already subject to the rule, or not subject to our jurisdiction due to
a Memorandum of Understanding between EPA, the U.S. Department of
Transportation (DOT), and the U.S. Department of the Interior (DOI),
which assigns jurisdiction over most of those facilities to DOT or DOI.
See 40 CFR part 112, Appendix B.
We have amended this provision to be consistent with the revised
statutory language found in sections 311(b)(1) and (c)(1)(A) of the
CWA. This rule focuses on preventing discharges to navigable waters,
adjoining shorelines, the exclusive economic zone, and natural
resources belonging to, appertaining to, or under the exclusive
jurisdiction of the United States. Once a prohibited discharge of oil
occurs and affects such natural resources, the NRDA provisions of OPA
sections 1002(b)(2)(A) and 1006 apply. The National Oceanographic and
Atmospheric Administration has promulgated a set of regulations which
govern the process for conducting NRDAs under the OPA. 15 CFR part 990.
Manmade structures. To allow consideration of manmade structures
(such as dikes, equipment, or other structures) to relieve a facility
from being subject to the rule would defeat its preventive purpose.
Because manmade structures may fail, thus putting the environment at
risk in the event of a discharge, there is an unacceptable risk in
using such structures to justify relieving a facility from the burden
of preparing a prevention plan. Secondary containment structures should
be part of the prevention plan.
Groundwater. EPA agrees with the commenter that groundwater
underlying a facility that is directly connected hydrologically to
navigable waters could trigger the requirement to produce an SPCC Plan
based on geographic or locational aspects of the facility. See the
discussion below for tanks regulated under 40 CFR part 280 or under a
State program approved under 40 CFR part 281.
EPA does not agree with the commenter that 40 CFR part 280 and a
State program approved under 40 CFR part 281 (the rules governing most
completely buried tanks) lack adequate emergency response provisions
for regulated tanks and piping. 40 CFR part 280 and State programs
approved under 40 CFR part 281 require corrective action, reporting,
and recordkeeping requirements for any release from regulated tanks and
piping. Also, 40 CFR parts 280 and 281 require various measures
intended to prevent contamination that could result from releases from
regulated tanks and piping. Although groundwater underlying a facility
may eventually connect hydrologically to navigable waters, the
requirements of 40 CFR part 280 and State programs approved under 40
CFR part 281 are intended to address the prevention of releases from
underground storage tanks that might have an impact on groundwater and
to require rapid response and corrective action at such sites if they
compromise groundwater quality.
Editorial changes and clarifications. The proposed phrase in the
first sentence which read, ``* * * could not reasonably be expected to
discharge oil as described in Sec. 112.1(b)(1) of this part,'' becomes
``* * * could not reasonably be expected to have a discharge as
described in Sec. 112.1(b).'' The proposed phrase in the last sentence
of the paragraph which read, ``* * * which may serve to restrain,
hinder, contain, or otherwise prevent a discharge of oil from reaching
navigable waters of the United States or adjoining shorelines. * * *''
becomes ``* * * which may serve to restrain, hinder, contain, or
otherwise prevent a discharge as described in Sec. 112.1(b).''

Section 112.1(d)(1)(ii)--Exemptions Based on Function--DOT

Background. In 1991, we republished, without substantive change,
the current exemption for equipment or operations of vessels or
transportation-related onshore and offshore facilities that are subject
to the authority and control of the U.S. Department of Transportation
(DOT). While we received no comments on the proposal, we believe that
this provision merits a few words to clarify the understanding of the
regulated community. The Executive Order (EO) implementing the Act
assigns regulatory jurisdiction to three Federal agencies based on the
function of facilities. Section 2(b)(1) of EO 12777 (56 FR 54757,
October 22, 1991) delegates to the Administrator of EPA authority in
section 311(j)(1)(C) relating to the establishment of procedures,
methods, and equipment, and other requirements for equipment to prevent
and to contain discharges of oil and hazardous substances from non-
transportation-related onshore facilities. Section 2(b)(2) of the EO
delegates similar authority to contain discharges of oil and hazardous
substances from vessels and transportation-related onshore facilities
and deepwater ports to the Secretary of Transportation. Section 2(b)(3)
of the EO delegates similar authority for offshore facilities,
including associated pipelines, other than deepwater ports, to the
Secretary of the Interior. A Memorandum of Understanding (MOU) among
EPA, DOT, and the U.S. Department of the Interior (DOI), found at
Appendix B to part 112, redelegated from DOI to EPA the responsibility
for non-transportation-related offshore facilities located landward of
the coastline. Similarly the MOU redelegated from DOI to DOT the
responsibility for transportation-related offshore facilities,
including pipelines, landward of the coastline.
In 1993, we proposed a definition for the term ``complex,'' which
is a facility possessing a combination of transportation-related and
non-transportation-related components that is subject to the
jurisdiction of more than one Federal agency under section

[[Page 47063]]

311(j) of the Clean Water Act. We published that definition on July 1,
1994. 59 FR 34097. A commenter on the definition of ``breakout tank''
(see also discussion below on ``breakout tank'') asked for guidance as
to which agency, DOT or EPA, regulates such tanks. Because of confusion
in the regulated community over which Federal agencies have
jurisdiction in complexes, we discuss the issue below.
Complexes. ``Complex'' is defined at Sec. 112.2 as a ``facility
possessing a combination of transportation-related and non-
transportation-related components that is subject to the jurisdiction
of more than one Federal agency under section 311(j) of the Clean Water
Act.'' The jurisdiction over a component of a complex is determined by
the activity occurring at that component. An activity might at one time
subject a facility to one agency's jurisdiction, and a different
activity at the same facility using the same structure or equipment
might subject the facility to the jurisdiction of another agency.
Equipment, operations, and facilities are subject to DOT
jurisdiction when they are engaged in activities subject to DOT
jurisdiction. If those facilities are also engaged in activities
subject to EPA jurisdiction, such activities would subject the
equipment, operation, or facility to EPA jurisdiction. An example of an
activity subject to EPA jurisdiction would be the loading or unloading
of oil into a tank truck or railcar. Under an MOU between EPA and DOT
(See Appendix A of part 112), transportation-related activities
regulated by DOT and non-transportation-related activities regulated by
EPA are defined. The MOU provides that highway vehicles and railroad
cars which are used for the transport of oil in interstate or
intrastate commerce and the equipment and appurtenances related
thereto, and equipment used for the fueling of locomotive units, as
well as the rights-of-way on which they operate, are considered
transportation-related activities, subject to DOT jurisdiction.
Another example of activities that might be considered a complex
and therefore subject to both sets of rules is that of a breakout tank
which is used for both transportation and non-transportation purposes.
It is the activity to which the tank is put that determines
jurisdiction. If you are an owner or operator of a complex, while you
may not choose which agency will regulate your facility, you may choose
not to engage in activities which would subject your facility to the
jurisdiction of a particular agency if you do not wish to comply with
that agency's rules. Otherwise, if you engage in activities subjecting
your facility to the jurisdiction of two agencies, your facility would
be subject to the more stringent of rules if there were to be a
conflict or an inconsistency in those rules. For example, a facility
with breakout tanks used solely to relieve surges in a pipeline, and
not having another non-transportation-related activity or component,
would not be required to have an SPCC Plan.
Which activity would be subject to DOT jurisdiction and which
activity which would be subject to EPA jurisdiction is defined by the
MOU in Appendix A to part 112. The definitions in the MOU are keyed to
the delegations of authority in EO 12777.
Because regulatory jurisdiction is predicated upon the owner's or
operator's activities at the facility, an owner or operator might have
questions concerning that jurisdiction at his facility. To clarify
regulatory jurisdiction, in February 2000, EPA and DOT signed a policy
memorandum that described how the two agencies would work together to
bring their respective regulations into alignment and, ultimately, to
eliminate overlapping jurisdiction over tanks when possible.
Recently, DOT informed EPA of a voluntary initiative to collect
information from industry on breakout tanks, beginning in December
2001. In anticipation of receiving the new tank information, DOT is
considering updating the National Pipeline Mapping System (NPMS) data
standards to reflect the guidelines for tank data submissions.
Operators' data submissions will include the location of each tank farm
with breakout tanks, information about each tank, and information about
the accuracy of the data. The data will be depicted as a geospatial
location in a digital file or a point located on a USGS 1:24,000
topographic quad map.
In addition to upgrading the NPMS, DOT is training its inspectors
in tank inspection. In the President's Fiscal Year 2002 budget request,
DOT expressed its intent to make tanks a priority in its compliance
program, particularly where the tanks are in sensitive areas. DOT and
EPA have agreed to provide cross-training of their respective
personnel. As the two agencies proceed with tank oversight plans, the
goal is to ensure that every tank is regulated and no tank is subject
to overlapping regulations from two agencies.
Editorial changes and clarifications. ``EPA Administrator'' becomes
``Administrator of EPA.'' Another revision corrects an incorrect
citation to the 1971 MOU between EPA and DOT.

Section 112.1(d)(1)(iii)--Exemptions Based on Function--DOT and DOI

Background. We have added a new paragraph to the applicability
section of the rule to note the jurisdictional changes resulting from
an MOU between DOT, DOI, and EPA redelegating certain functions. The
MOU was published on July 1, 1994 (at 59 FR 34102). The addition of
this paragraph is not a substantive change in the rules, but merely an
editorial revision to mark the jurisdiction of the respective agencies
in this rule. It complements the other paragraphs in Sec. 112.1(d)(1)
that describe facilities which are not subject to EPA jurisdiction. Due
to the MOU, the referenced facilities, equipment, and operations of DOT
and DOI in Sec. 112.1(d)(1)(iii), like the facilities, equipment, and
operations described in Sec. 112.1(d)(1)(i) and (ii), are not subject
to EPA jurisdiction under section 311(j)(1)(C) of the Act. They are not
subject to EPA jurisdiction either because of their location, in the
case of DOI facilities, or because of their activities, which are
strictly transportation-related, in the case of DOT facilities.
EO 12777 (56 FR 54757, October 22, 1991) delegates to DOI, DOT, and
EPA various responsibilities identified in section 311(j) of the CWA.
Sections 2(b)(3), 2(d)(3), and 2(e)(3) of EO 12777 assigned to DOI
spill prevention and control, contingency planning, and equipment
inspection activities associated with offshore facilities. Section
311(a)(11) of the CWA defines the term ``offshore facility'' to include
facilities of any kind located in, on, or under navigable waters of the
United States. By using this definition, the traditional DOI role of
regulating facilities on the Outer Continental Shelf was expanded by EO
12777 to include inland lakes, rivers, streams, and any other inland
waters.
Under section 2(i) of EO 12777, DOI redelegated, and EPA and DOT
accepted, the functions vested in DOI by sections 2(b)(3), 2(d)(3), and
2(e)(3) of the EO. DOI redelegated to EPA the responsibility for non-
transportation-related offshore facilities located landward of the
coastline. To DOT, DOI redelegated responsibility for transportation-
related facilities, including pipelines, located landward of the
coastline. DOT retained jurisdiction for deepwater ports and the
associated seaward pipelines. DOI retained jurisdiction over
facilities, including pipelines, located seaward of

[[Page 47064]]

the coastline, except for deepwater ports and associated seaward
pipelines. For purposes of the MOU, the term ``coastline'' means ``the
line of ordinary low water along that portion of the coast which is in
direct contact with the open sea and the line marking the seaward limit
of inland waters.''

Section 112.1(d)(2)--Other Exemptions

Section 112.1(d)(2)(i)--Completely Buried Storage Tanks Currently
Subject to all of the Technical Requirements of 40 CFR PART 280 or
State Programs Approved under 40 CFR PART 281

Background. Part 280 and approved State programs. In 1991, we
proposed to exempt from the underground storage capacity of facilities
in the SPCC rule the storage capacity of buried underground storage
tanks (USTs) currently subject to all of the technical requirements of
40 CFR part 280. We proposed this change as Sec. 112.1(d)(2)(i) in
1991. We did not at the time include approved State programs in the
proposal because in 1991 few if any States had such programs. In 40 CFR
part 281 (published on September 23, 1988 at 53 FR 37212), EPA
established regulations whereby a State could receive EPA approval for
its State program to operate in lieu of the Federal program. In order
to obtain EPA program approval under part 281, a State program must
demonstrate that its requirements are no less stringent than the
corresponding Federal regulations set forth in part 280, and that it
provides adequate enforcement of these requirements. Thus, we have
decided to exempt also the storage capacity of USTs subject to all of
the technical requirements of State UST programs which EPA has
approved. By January 2000, EPA had approved 27 State programs, plus
programs in the District of Columbia and Puerto Rico. The rationale for
exempting the storage capacity of these facilities from the SPCC regime
is because 40 CFR part 280 and the approved State programs under 40 CFR
part 281 provide comparable environmental protection for the purpose of
preventing discharges as described in Sec. 112.1(b).
Facilities with storage capacity not subject to part 280 or
deferred from its provisions.
Storage capacity not subject to part 280. Some UST facilities have
storage capacity that is not subject to part 280, for example: any UST
system holding hazardous wastes listed or identified under Subtitle C
of the Solid Waste Disposal Act, or a mixture of such hazardous wastes
and other regulated substances; wastewater treatment tank systems that
are part of a wastewater treatment facility regulated under section
307(b) or 402 of the Clean Water Act; equipment or machinery that
contains regulated substances for operational purposes such as
hydraulic lift tanks and electrical equipment tanks; and, UST systems
whose capacity is 110 gallons or less. Also, part 280 does not provide
for regulation of USTs storing animal fats and vegetable oils. All of
these facilities remain potentially subject to the SPCC program.
Tanks deferred from compliance with part 280 rules. Other
facilities with storage capacity subject to part 280 are deferred from
current compliance with most of the technical requirements of that
part, including: wastewater treatment tank systems; any UST systems
containing radioactive material that are regulated under the Atomic
Energy Act of 1954 (42 U.S.C. 2011 et seq.); any UST system that is
part of an emergency generator system at a nuclear power generation
facility regulated by the Nuclear Regulatory Commission under 10 CFR
part 50, Appendix A; airport hydrant fuel distribution systems; UST
systems with field-constructed tanks; and, any UST system that stores
fuel solely for use by an emergency power generator. All of these
facilities remain potentially subject to the SPCC program.
Tanks excluded from part 280 UST definition. Excluded from the
definition of ``underground storage tank'' or ``UST'' in part 280 are
a: (1) Farm or residential tank of 1,100 gallons or less capacity used
for storing motor fuel for noncommercial purposes; (2) tank used for
storing heating oil for consumptive use on the premises where stored;
(3) septic tank; (4) pipeline facility (including gathering lines)
regulated under: (a) the Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. App. 1671, et seq.), (b) the Hazardous Liquid Pipeline Safety
Act of 1979 (49 U.S.C. App. 2001, et seq.), or (c) which is an
intrastate pipeline facility regulated under State law comparable to
the provisions of the Natural Gas Pipeline Safety Act of 1968 or the
Hazardous Liquid Pipeline Safety Act of 1979; (5) surface impoundment,
pit, pond, or lagoon; (6) storm-water or wastewater collection system;
(7) flow-through process tank; (8) liquid trap or associated gathering
lines directly related to oil or gas production and gathering
operations; or, (9) storage tank situated in an underground area (such
as a basement, cellar, mineworking, drift, shaft, or tunnel) if the
storage tank is situated upon or above the surface of the floor. An UST
system includes the tank itself, connected underground piping,
underground ancillary equipment, and containment system. Therefore, any
of these tank systems may be potentially subject to the SPCC program.
Definitions. EPA proposed to define an UST as any tank which is
completely covered with earth. Part 280 includes a broader definition
of underground storage tanks, and includes partially buried and
bunkered tanks. Partially buried tanks and bunkered tanks are excluded
from the definition of ``completely buried tank'' in part 112, and are
considered aboveground storage tanks (ASTs) for purposes of the rule,
as are tanks in vaults. These tanks are not included in today's
exemption because compared to completely buried tanks, partially buried
and bunkered tanks are more likely to cause a discharge as described in
Sec. 112.1(b).
Although most USTs will be exempt from the SPCC rule (see the above
discussion on Sec. 112.1(d)(4)), a facility might have non-exempt USTs
for which it must prepare a facility SPCC Plan. If part of your
facility is subject to the rule, you must mark the location and
contents of all containers, including exempt and non-exempt USTs, on
the facility diagram. 40 CFR 112.1(d)(4). The rationale for this
requirement is to help response personnel to easily identify dangers
from either fire or explosion, or physical impediments during spill
response activities. In addition, facility diagrams may be referred to
in the event of design modifications. 56 FR 54626.
Capacity calculations. To calculate the 42,000-gallon threshold
which subjects a facility operating a completely buried tank to the
SPCC rule, you may exclude the storage capacity of any completely
buried tank currently subject to all of the technical requirements of
40 CFR part 280 or of an approved State program under 40 CFR part 281.
Thus we expect you will count few completely buried tanks containing
petroleum products in that calculation. You must count the capacity of
completely buried tanks containing products which are not regulated
under part 280 or an approved State program under part 281, or which
are not currently subject to all of its technical requirements.
Permanently closed tanks. In 1991, EPA proposed that the
underground storage capacity of a facility does not include the
capacity of underground tanks that are ``permanently closed'' as
defined in Sec. 112.2. Under today's rule, you may exclude the capacity
of tanks that are permanently closed, as defined in Sec. 112.2, in
completely buried tank capacity calculations.

[[Page 47065]]

Comments. Completely buried storage tanks. Favorable comments.
Commenters overwhelmingly favored eliminating dual regulation of ASTs
and USTs. Most agreed that the UST program provides protection
comparable to the SPCC program. Several argued that all USTs as defined
in part 280, which includes partially buried and bunkered tanks, should
be exempted. Others argued that tanks deferred under the UST program
should be exempted from the SPCC program. Another commenter suggested
that piping connecting exempted USTs to regulated ASTs should be
exempted from the SPCC rules. The commenter added that if such piping
is subject to leak detection requirements for USTs under 40 CFR part
280, then it should remain exclusively under UST rules and be exempted
from SPCC rules.
Opposing comments. Several commenters, however, opposed the
proposed exemption of USTs from the SPCC program. Those commenters
argued that the SPCC rules are not duplicative. They asserted that UST
rules lack provisions concerning contingency planning; emergency
response; periodic training of personnel to deal with emergencies;
maintenance of records regarding inspections and tests; maintenance of
records regarding discharges to navigable waters or adjoining
shorelines; diking of fuel transfer areas; fuel transfer area
operational procedures; illumination of fuel transfer areas; stormwater
drainage system design; posting of vehicle weight restrictions in areas
where there is underground piping and/or design of underground piping
to withstand vehicular loadings; a requirement for an application of
``good engineering practice,'' in other words, no requirements that the
design and construction of a UST system be overseen by a Professional
Engineer; a requirement that management sign the Plan; and, ``other
topics enumerated in 40 CFR 112.7.'' One commenter noted that since
groundwater becomes surface water eventually, whether within minutes or
months, the absence of emergency provisions in the UST program might
cause environmental problems. Another commenter argued that the new
regulatory scheme would be confusing because a facility might have some
containers subject to SPCC and some that are not, as well as containers
that may be subject to State regulation.
Response to comments. Completely buried storage tanks. As we noted
above, in the discussion of Sec. 112.1(d)(1)(i), the UST program
provides comparable environmental protection to the SPCC program. While
not all aspects of the programs are identical, the UST program ensures
protection against discharges as described in Sec. 112.1(b), and
protection of the environment. Therefore, dual regulation is
unnecessary. In response to commenters asserting that UST rules lack
provisions concerning contingency planning; emergency response; certain
recordkeeping requirements; and other alleged deficiencies, we
disagree. The UST rules have numerous safeguards addressing the
commenter's issues.
Partially buried tanks and bunkered tanks. We disagree that
partially buried tanks and bunkered tanks should be considered
completely buried tanks, and therefore excluded from SPCC provisions.
Such tanks may suffer damage caused by differential corrosion of buried
and non-buried surfaces greater than completely buried tanks, which
could cause a discharge as described in Sec. 112.1(b). Such tanks are
also not subject to secondary containment requirements under part 280
or a State program approved under 40 CFR part 281. There may also be
accidents during loading or unloading operations, or overfills
resulting in a discharge to navigable waters and adjoining shorelines.
Furthermore, a failure of such a tank (caused by accident or vandalism)
would be more likely to cause a discharge as described in
Sec. 112.1(b).
Contingency planning. While it is true that UST rules do not
require contingency planning, spills and overfills of USTs resulting in
a discharge to the environment are much less likely as a result of
those rules. An owner or operator of an underground storage tank
subject to 40 CFR part 280 or a State program approved under 40 CFR
part 281 was required to install spill and overfill prevention
equipment no later than December 22, 1998. 40 CFR 280.20 and 280.21.
The use of this equipment will greatly reduce the likelihood of both
small and large releases or discharges of petroleum to the environment
through surface spills or overfilling underground storage tanks. In
addition, the UST rules place a general responsibility on the owner or
operator to ensure that discharges due to spilling and overfilling do
not occur. See 40 CFR 280.30.
Emergency response and release reporting. The UST rules also have
several requirements related to emergency response and release or
discharge reporting. The UST rules generally require that releases of
regulated substances be reported to the implementing agency within 24
hours. As part of the initial response requirements (found at 40 CFR
280.61), an owner or operator must take immediate action to prevent
further release of the regulated substance and must identify and
mitigate fire, explosion, and vapor hazards.
Reporting and recordkeeping. In addition to the reporting
requirements mentioned above, there are numerous reporting and
recordkeeping requirements in the rules governing underground storage
tanks. Among these are: corrective action plans; documentation of
corrosion protection equipment; documentation of UST system repairs;
and, information concerning recent compliance with release detection
requirements. Thus, the UST rules have significant reporting and
recordkeeping requirements, including specific requirements related to
spills and overfills.
Transportation rules. In addition to the EPA UST rules, the U.S.
Department of Transportation has hazardous material regulations related
to driver training, emergency preparation, and incident reporting and
emergency response. Training regulations, for example, can be found at
49 CFR part 172, and loading and unloading regulations can be found at
49 CFR 177.834 and 49 CFR 177.837. These regulations apply, for
example, to truck drivers delivering gasoline or diesel fuel to gas
stations with underground storage tanks.
Section 112.1(f). Finally, as a safeguard, today's rule (see
Sec. 112.1(f) in today's preamble) provides the Regional Administrator
with the authority to require any facility subject to EPA jurisdiction
under section 311 of the CWA, regardless of threshold or other
regulatory exemption, to prepare and implement an SPCC Plan when
necessary to further the purposes of the Act.
Regulatory jurisdiction. To eliminate any possible confusion over
regulatory jurisdiction, we explain in this preamble (see the above
background discussion) which containers in a facility are subject to 40
CFR part 280 or a State program approved under 40 CFR part 281 and
which are subject to part 112.
Piping, ancillary equipment, and containment systems. EPA has
modified the scope of the proposed exemption for completely buried
tanks (which are excluded from the scope of the SPCC rule if they are
subject to all of the technical requirements of 40 CFR part 280 or a
State program approved under 40 CFR part 281) by clarifying that the
exemption includes the connected underground piping, underground
ancillary equipment, and containment

[[Page 47066]]

systems, in addition to the tank itself. This modification is
consistent with the definition of underground storage tank system found
at 40 CFR 280.12. In addition, this clarification is responsive to the
comment which asked that the piping be included in the exemption.
Deferred tanks. We disagree that we should not regulate tanks which
are deferred from compliance with any of the technical requirements of
40 CFR part 280 or a State program approved under 40 CFR part 281.
These are containers from which a discharge as described in
Sec. 112.1(b) may occur, and thus are properly subject to the SPCC
rule. Furthermore, if they were not regulated by SPCC rules, they may,
in some instances, not be regulated at all.
Effect on Facility Response Plan facilities. The exemption for
completely buried tanks subject to all the technical requirements of 40
CFR part 280 or a State program approved under 40 CFR part 281 applies
to the calculation of storage capacity both for SPCC purposes and for
Facility Response Plan (FRP) purposes because the exemption applies to
all of part 112. Therefore, a few FRP facilities with large capacity
completely buried tanks subject to 40 CFR part 280 or a State program
approved under 40 CFR part 281 might no longer be required to have
FRPs. Calculations for planning levels for worst case discharges will
also be affected. However, the Regional Administrator retains authority
to require the owner or operator of any non-transportation-related
onshore facility to prepare and submit a FRP after considering the
factors listed in Sec. 112.20(f)(2). See Sec. 112.20(b)(1).
Editorial changes and clarifications. ``Underground storage tanks''
becomes ``completely buried storage tanks.'' The phrase ``does not
include'' becomes ``excludes.'' We have amended the rule to clarify
that facilities must be subject to ``all of'' the technical
requirements of 40 CFR part 280 or of a State program approved under 40
CFR part 281 to qualify for the SPCC exemption. If a facility is
subject to some, but not all of the UST requirements, it may be subject
to the SPCC rule. Facilities in this category include those which are
excluded from UST requirements, or deferred from compliance with some
or all of those requirements.

Section 112.1(d)(2)(ii)--AST Threshold, Minimum Container Size,
Permanently Closed Tanks

Background. Regulatory thresholds. In the 1997 preamble, we asked
for comment as to whether any change in the level of storage capacity
which subjects a facility to this rule is justified. 62 FR 63813. We
noted that we were considering eliminating the provision in the current
rule that requires a facility having an aboveground container in excess
of 660 gallons to prepare an SPCC Plan, as long as the total
aboveground capacity of the facility remained at 1,320 gallons or less.
The effect of such a change would be to raise the threshold for
regulation to an aboveground storage capacity greater than 1,320
gallons.
In 1991, EPA also proposed that the aboveground storage capacity of
a facility does not include the capacity of aboveground storage
containers that are ``permanently closed'' as defined in Sec. 112.2.
Comments. Minimum size container. Numerous commenters suggested a
de minimis size for containers to be used for AST capacity
calculations. Most of the suggestions came in the context of the
discussion of the proposed definition of ``bulk storage tank.''
Suggestions for a minimum size ranged from over 55 gallons to 25,000
gallons. The bulk of the commenters favored either a greater than 55-
gallon number, or a greater than 660-gallon figure.
Regulatory thresholds. Higher threshold. Commenters offered
numerous threshold levels in both 1991 and 1997. Suggestions for the
regulatory threshold in 1991 ranged from greater than 1,320 gallons to
120,000 gallons. Many commenters, particularly utilities, favored
thresholds in the 10,000-42,000-gallon range. In 1997, when EPA
suggested it might consider a greater than 1,320-gallon threshold, many
commenters favored that suggestion. Others urged thresholds ranging up
to 15,000 gallons.
Lower threshold. A few commenters suggested lowering the threshold.
Commenters suggested threshold levels of 110 and 250 gallons. The
general rationale for these suggestions was that oil spills causing
even a sheen can be devastating. Therefore, these commenters reasoned
that sheens from home heating oil tanks of 110 gallons, i.e., two 55-
gallon drums, are every bit as important as sheens from crude oil
tanks. An advocate for a lower threshold noted that manufacturers now
sell, market, and produce fuel containers of 650 gallons designed to
avoid compliance with the rule, whether the site is adjacent to
navigable waterways or not. The commenter added that most manufacturers
market or sell a ``listed'' tank of 250 gallons, and that under current
rules, five of these tanks would not subject a facility to the SPCC
rule, yet the risk would be nearly identical to one larger tank of
1,250 gallons depending upon the design of the tank.
Response to comments. Minimum container size. In response to
comments, we are introducing a minimum container size. The 55 gallon
container is the most widely used commercial bulk container, and these
containers are easily counted. Containers below 55 gallons in capacity
are typically end-use consumer containers. Fifty-five gallon containers
are also the lowest size bulk container that can be handled by a human.
Containers above that size typically require equipment for movement and
handling. We considered a minimum container size of one barrel.
However, a barrel or 42 gallons is a common volumetric measurement size
for oil, but is not a common container size. Therefore, it would not be
appropriate to institute a 42 gallon minimum container size.
You need only count containers of 55 gallons or greater in the
calculation of the regulatory threshold. You need not count containers,
like pints, quarts, and small pails, which have a storage capacity of
less than 55 gallons. Some SPCC facilities might therefore drop out of
the regulated universe of facilities. You should note, however, that
EPA retains authority to require any facility subject to its
jurisdiction under section 311(j) of the CWA to prepare and implement
an SPCC Plan, or applicable part, to carry out the purposes of the Act.
While some commenters had suggested a higher threshold level, we
believe that inclusion of containers of 55 gallons or greater within
the calculation for the regulatory threshold is necessary to ensure
environmental protection. If we finalized a higher minimum size, the
result in some cases would be large amounts of aggregate capacity that
would not be counted for SPCC purposes, and would therefore be
unregulated, posing a threat to the environment. We believe that it is
not necessary to apply SPCC or FRP rules requiring measures like
secondary containment, inspections, or integrity testing, to containers
smaller than 55 gallons storing oil because a discharge from these
containers generally poses a smaller risk to the environment.
Furthermore, compliance with the rules for these containers could be
extremely burdensome for an owner or operator and could upset
manufacturing operations, while providing little or no significant
increase in protection of human health or the environment. Many of
these smaller containers are constantly being emptied, replaced, and
relocated so that serious corrosion will likely soon be detected and
undetected leaks become highly unlikely. While we realize that small
discharges may harm

[[Page 47067]]

the environment, depending on where and when the discharge occurs, we
believe that this measure will allow facilities to concentrate on the
prevention and containment of discharges of oil from those sources most
likely to present a more significant risk to human health and the
environment.
Effect on Facility Response Plan facilities. The exemption for
containers of less than 55 gallons applies to the calculations of
storage capacity both for SPCC purposes and for FRP purposes because
the exemption applies to all of part 112. Therefore, a few FRP
facilities might no longer be required to have FRPs. The calculations
for planning levels for worst case discharges would also be affected.
Regulatory thresholds. We have decided to raise the current
regulatory threshold, as discussed in the 1997 preamble, to an
aggregate threshold of over 1,320 gallons. We believe that raising the
regulatory threshold is justified because our Survey of Oil Storage
Facilities (published in July 1996, and available on our Web site at
www.epa.gov/oilspill) points to the conclusion that several facility
characteristics can affect the chances of a discharge. First, the
Survey showed that as the total storage capacity increases, so does the
propensity to discharge, the severity of the discharge, and the costs
of cleanup. Likewise, the Survey also pointed out that as the number of
tanks increases, so does the propensity to discharge, the severity of
the discharge, and the costs of cleanup. Finally, the Survey showed
that as annual throughput increases, so does the propensity to
discharge, the severity of the discharge, and, to a lesser extent, the
costs of the cleanup.
The threshold change will have several benefits. The threshold
increase will result in a substantial reduction in information
collection associated with the rule overall. Some smaller facilities
will no longer have to bear the costs of an SPCC Plan. EPA will be
better able to focus its regulatory oversight on facilities that pose a
greater likelihood of a discharge as described in Sec. 112.1(b), and a
greater potential for injury to the environment if a discharge as
described in Sec. 112.1(b) results.
We raise the regulatory threshold realizing that discharges as
described in Sec. 112.1(b) from small facilities may be harmful,
depending on the surrounding environment. Among the factors remaining
to mitigate any potential disasters are that small facilities no longer
required to have SPCC Plans are still liable for cleanup costs and
damages from discharges as described in Sec. 112.1(b). We encourage
those facilities exempted from today's rule to maintain SPCC Plans.
Likewise, we encourage facilities becoming operable in the future with
storage or use capacity below the regulatory threshold to develop
Plans. We believe that SPCC Plans have utility and benefit for both the
facility and the environment. But, we will no longer by regulation
require Plans from exempted facilities.
While we believe that the Federal oil program is best focused on
larger risks, State, local, or tribal governments may still decide that
smaller facilities warrant regulation under their own authorities. In
accord with this philosophy, we note that this Federal exemption may
not relieve all exempted facilities from Plan requirements because some
States, local, or tribal governments may still require such facilities
to have Plans. While we are aware that some States, local, or tribal
governments have laws or policies allowing them to set requirements no
more stringent than Federal requirements, we encourage States, local,
or tribal governments to maintain or lower regulatory thresholds to
include facilities no longer covered by Federal rules where their own
laws or policies allow. We believe that CWA section 311(o) authorizes
States to establish their own oil spill prevention programs which can
be more stringent than EPA's program.
Regulatory safeguard. When a particular facility that is below
today's threshold becomes a hazard to the environment because of its
practices, or when needed for other reasons to carry out the Clean
Water Act, the Regional Administrator may, under a new rule provision,
require that facility to prepare and implement an SPCC Plan. See
Sec. 112.1(f). This provision acts as a safeguard to an environmental
threat from any exempted facility.
Editorial changes and clarifications. The reference to
``underground storage tanks'' was deleted because it is unnecessary. A
reference to the exemption of certain ``completely buried'' storage
tanks from the rules is contained in Sec. 112.1(d)(4).

Section 112.1(d)(3)--Minerals Management Service Facilities

Background. In 1991, EPA proposed to exempt from the SPCC rule
facilities subject to Minerals Management Service (MMS) Operating
Orders, notices, and regulations. The rationale for the 1991 proposal
was to avoid redundancy in regulation, based on EPA's analysis that MMS
Operating Orders require adequate spill prevention, control, and
countermeasures that are directed more specifically to the facilities
subject to MMS requirements. Until October 22, 1991, the date of the
1991 proposed rule, responsibility for the establishment of procedures,
methods, and equipment and other requirements for equipment to prevent
and to contain discharges of oil from offshore facilities, including
associated pipelines, other than deepwater ports subject to the
Deepwater Ports Act, was delegated to EPA. Under EO 12777 (56 FR 54747,
October 22, 1991), responsibility for the establishment of procedures,
methods, and equipment and other requirements for equipment to prevent
and to contain discharges of oil from offshore facilities, including
associated pipelines, other than deepwater ports subject to the
Deepwater Ports Act, was redelegated to the U.S. Department of the
Interior (DOI). These facilities are generally offshore oil production
or exploration facilities.
In 1994, in another Memorandum of Understanding (MOU) found in
Appendix B of part 112, EPA, DOI, and DOT redelegated the
responsibility to regulate non-transportation-related offshore
facilities located in and along the Great Lakes, rivers, coastal
wetlands, and the Gulf Coast barrier islands from DOI to EPA.
Because of the redelegation of responsibility, some DOI facilities
again became subject to the jurisdiction of EPA under section
311(j)(1)(C) of the Act. We added a reference to the MOU in the rule.
Comments. Most commenters favored the proposed exemption because
they believed that MMS orders, notices, and regulations require oil
spill prevention and contingency planning equivalent to the
environmental protection envisioned by EPA's rules. Two commenters,
both States, opposed the proposal. One was concerned with MMS'
``historic treatment of identified violations.'' The other suggested
that the more stringent of EPA or MMS regulations apply.
Response to comments. We have retained our original proposal,
except for the editorial revision, because we believe that MMS will
provide equivalent environmental protection for the facilities under
its jurisdiction. MMS regulations require adequate spill prevention,
control, and countermeasures that are directed more specifically to the
facilities subject to MMS requirements.
Editorial changes and clarifications. The term ``Operating Orders''
becomes ``regulations.''

[[Page 47068]]

Section 112.1(d)(4)--Completely Buried Storage Tanks

Background. This paragraph is a companion paragraph to
Sec. 112.1(d)(2)(i) for purposes of SPCC exemption. As in
Sec. 112.1(d)(2)(i), we have also exempted connected underground
piping, underground ancillary equipment, and containment systems
subject to all of the technical requirements of part 280 or a State
program approved under 40 CFR part 281. We also added a clause noting
that these exempted tanks must be marked on the facility diagram as
provided in Sec. 112.7(a)(3), if the facility is otherwise subject to
this part. See the discussion above concerning Sec. 112.1(d)(2)(i).
Editorial changes and clarifications. ``Underground storage tanks''
becomes ``completely buried storage tanks.'' We also reference 40 CFR
part 281.

Section 112.1(d)(5)--Minimum Size Exemption

Background. This is a new section we added in response to comments
pertaining to the regulatory threshold/minimum container size issue
discussed above. This section clarifies that any aboveground or
completely buried container with capacity of less than 55 gallons is
not subject to the rule. It is a companion rule to Sec. 112.1(d)(2)(ii)
for purposes of SPCC exemption. See the discussion above concerning
Sec. 112.1(d)(2)(ii).

Section 112.1(d)(6)--Wastewater Treatment Facility Exemption

Background. In 1991, EPA proposed various changes to Sec. 112.1(d)
concerning exemptions to part 112, and received comments on its
proposals. Among those comments was one suggesting an exemption for
certain treatment systems.
Comments. One commenter suggested that the ``Sec. 112.1 exceptions
should be expanded to include facility storage and treatment tanks
associated with `non-contact cooling water systems' and/or `storm water
retention and treatment systems.' Although these tanks are designed to
remove spilled oil from manufacturing operations and parking lot
runoff, the concentration of oil in the water at any given time would
be insignificant. These tanks are typically very large, i.e., in excess
of 100,000 gallons, and are typically not contained by diked walls or
impervious surfaces. GM believes the cost to contain these structures
could be better spent on other SPCC regulatory requirements.''
Response to comments. We agree with the commenter that certain
wastewater treatment facilities or parts thereof should be exempted
from the rule, if used exclusively for wastewater treatment and not
used to meet any other requirement of part 112. We have therefore
amended the rule to reflect that agreement. No longer subject to the
rule would be wastewater treatment facilities or parts thereof such as
treatment systems at POTWs and industrial facilities treating oily
wastewater.
Many of these wastewater treatment facilities or parts thereof are
subject to NPDES or state-equivalent permitting requirements that
involve operating and maintaining the facility to prevent discharges.
40 CFR 122.41(e). The NPDES or state-equivalent process ensures review
and approval of the facility's: plans and specifications; operation/
maintenance manuals and procedures; and, Stormwater Pollution
Prevention Plans, which may include Best Management Practice Plans
(BMP).
Many affected facilities are subject to a BMP prepared under an
NPDES permit. Some of those plans provide protections equivalent to
SPCC Plans. BMPs are additional conditions which may supplement
effluent limitations in NPDES permits. Under section 402(a)(1) of the
CWA, BMPs may be imposed when the Administrator determines that such
conditions are necessary to carry out the provisions of the Act. See 40
CFR 122.44(k). CWA section 304(e) authorizes EPA to promulgate BMPs as
effluent limitations guidelines. NPDES rules provide for BMPs when:
authorized under section 304(e) of the CWA for the control of toxic
pollutants and hazardous substances; numeric limitations are
infeasible; or, the practices are reasonably necessary to achieve
effluent limitations and standards to carry out the purposes of the
CWA. In addition, each NPDES or state equivalent permit for a
wastewater treatment system must contain operation and maintenance
requirements to reduce the risk of discharges. 40 CFR 122.41(e).
Additionally, some wastewater is pretreated prior to discharge to a
permitted wastewater treatment facility. The CWA authorizes EPA to
establish pretreatment standards for pollutants that pass through or
interfere with the operation of POTWs. The General Pretreatment
Regulations (GPR), which set for the framework for the implementation
of categorical pretreatment standards, are found at 40 CFR part 403.
The GPR prohibit a user from introducing a pollutant into a POTW which
causes pass through or interference. 40 CFR 403.5(a)(1). More
specifically, the GPR also prohibit the introduction into of POTW of
``petroleum, oil, nonbiodegradable cutting oil, or products of mineral
oil origin in amounts that will cause interference or pass through. 40
CFR 403.5(b)(6). EPA believes that the GPR and the more specific
categorical pretreatment standards, some of which allow indirect
dischargers to adopt a BMP as an alternative way to meet pretreatment
standards, will work to prevent the discharge of oil from wastewater
treatment systems into navigable waters or adjoining shorelines by way
of a POTW.
However, if a wastewater facility or part thereof is used for the
purpose of storing oil, then there is no exemption, and its capacity
must be counted as part of the storage capacity of the facility. Any
oil storage capacity associated with or incidental to these wastewater
treatment facilities or parts thereof continues to be subject to part
112. At permitted wastewater treatment facilities, storage capacity
includes bulk storage containers, hydraulic equipment associated with
the treatment process, containers used to store oil which feed an
emergency generator associated with wastewater treatment, and slop
tanks or other containers used to store oil resulting from treatment.
Some flow through treatment such as oil/water separators have a storage
capacity within the treatment unit itself. This storage capacity is
subject to the rule. An example of a wastewater treatment unit that
functions as storage is a treatment unit that accumulates oil and
performs no further treatment, such as a bulk storage container used to
separate oil and water mixtures, in which oil is stored in the
container after removal of the water in the separation/treatment
process.
We do not consider wastewater treatment facilities or parts thereof
at an oil production, oil recovery, or oil recycling facility to be
wastewater treatment for purposes of this paragraph. These facilities
generally lack NPDES or state-equivalent permits and thus lack the
protections that such permits provide. Production facilities are
normally unmanned and therefore lack constant human oversight and
inspection. Produced water generated by the production process normally
contains saline water as a contaminant in the oil, which might
aggravate environmental conditions in addition to the toxicity of the
oil in the case of a discharge.
Additionally, the goal of an oil production, oil recovery, or oil
recycling facility is to maximize the production or recovery of oil,
while eliminating impurities in the oil, including water, whereas the
goal of a wastewater

[[Page 47069]]

treatment facility is to purify water. Neither an oil production
facility, nor an oil recovery or oil recycling facility treats water,
instead they treat oil. For purposes of this exemption, produced water
is not considered wastewater and treatment of produced water is not
considered wastewater treatment. Therefore, a facility which stores,
treats, or otherwise uses produced water remains subject to the rule.
At oil drilling, oil production, oil recycling, or oil recovery
facilities, treatment units subject to the rule include open oil pits
or ponds associated with oil production operations, oil/water
separators (gun barrels), and heater/treater units. Open oil pits or
ponds function as another form of bulk storage container and are not
used for wastewater treatment. Open oil pits or ponds also pose
numerous environmental risks to birds and other wildlife.
Examples of wastewater treatment facilities or parts thereof used
to meet a part 112 requirement include an oil/water separator used to
meet any SPCC requirement. Oil/water separators used to meet SPCC
requirements include oil/water separators used as general facility
secondary containment (i.e., Sec. 112.7(c), secondary containment
requirements for loading and unloading (i.e., Sec. 112.7(h)), and for
facility drainage (i.e., Sec. 112.8(b) or Sec. 112.9(b)).
Whether a wastewater treatment facility or part thereof is used
exclusively for wastewater treatment (i.e., not storage or other use of
oil) or used to satisfy a requirement of part 112 will often be a
facility specific determination based on the activity associated with
the facility or part thereof. Only the portion of the facility (except
at an oil production, oil recovery, or oil recycling facility) used
exclusively for wastewater treatment and not used to meet any part 112
requirement is exempt from part 112. Storage or use of oil at such a
facility will continue to be subject to part 112.
Although we exempt wastewater treatment facilities or parts thereof
from the rule under certain circumstances, a mixture of wastewater and
oil still is ``oil'' under the statutory and regulatory definition of
the term (33 U.S.C. 1321(a)(1) and 40 CFR 110.2 and 112.2). Thus, while
we are excluding from the scope of the rule certain wastewater
treatment facilities or parts thereof, a discharge of wastewater
containing oil to navigable waters or adjoining shorelines in a
``harmful quantity'' (40 CFR part 110) is prohibited. Thus, to avoid
such discharges, we would expect owners or operators to comply with the
applicable permitting requirements, including best management practices
and operation and maintenance provisions.

Proposed Sec. 112.1(e)--Facility Notification

Background. In 1991, EPA proposed to require that any facility
subject to its jurisdiction under the Clean Water Act which also meets
the regulatory storage capacity threshold notify the Agency on a one-
time basis of its existence. CWA section 311(m) provides EPA with the
authority to require the owner or operator of a facility subject to
section 311 to make reports and provide information to carry out the
objectives of section 311. Any owner or operator who failed to notify
or knowingly submitted false information in a notification would be
subject to a civil penalty. This type of notice is separate from the
notice required at 40 CFR 110.3 of discharges which may be harmful to
the public health or welfare or the environment. We did not propose any
changes to the notice requirements in Sec. 110.3.
We proposed that facility notification include, among other items,
information concerning the number, size, storage capacity, and
locations of ASTs. The proposal would have exempted information
regarding the number and size of completely buried tanks, as defined in
Sec. 112.2, from the notification requirement. The rationale for
notification was that submission of this information would be needed to
help us identify our universe of facilities and to help us administer
the Oil Pollution Prevention Program by creating a data base of
facility-specific information. We also asked for comments regarding the
form on which notification would be submitted, and on various possible
items of information that could be included besides the ones proposed.
Lastly, we asked for comments on alternate forms of facility
notification. 56 FR 54614-15.
Comments. Favorable comments. A number of commenters favored the
proposal, including some industry commenters. These commenters stated
that there was generally no current procedure whereby EPA can identify
the universe of sites subject to the SPCC rule, and that an inventory
of these facilities is necessary.
Opposing comments. Most industry commenters opposed the proposal
either in part or in its entirety.
Sources of information. Commenters who opposed the proposal in its
entirety asserted that it was unnecessary, largely because they
believed the information sought might be better obtained from other
sources, such as State sources or SARA Title III reports. Some States
wanted copies of the notifications EPA would receive, and at least one
suggested requiring updates. One commenter suggested that we gather the
information through representative sampling at on-site surveys. Another
commenter suggested that we use spill reports already submitted because
it makes more sense to regulate those facilities whose practices have
led to a spill.
Applicability. Other commenters criticized the fact that the
proposal would have been applicable to facilities which were not
subject to the SPCC rule. Their solution was to limit applicability to
facilities currently regulated under part 112.
Terrorism. One commenter suggested that the aggregation of such
strategic information in an easily accessed data base like a facility
notification data base could provide an intelligence windfall to
terrorists and other enemies of our nation.
Small facilities. Commenters for small facilities argued that
facility notification would cause a deluge of notifications to be sent
to EPA with little or no environmental benefit. Some of these
commenters suggested exempting small facilities at various levels of
storage capacity, for example, 42,000 gallons or 100,000 gallons.
Notification time line. In particular, commenters questioned
various aspects of the proposal. Many questioned the necessity of
providing the information within the proposed two months time frame.
Some commenters suggested other time periods ranging from ``more than
two months'' to 18 months. However, the bulk of the commenters favored
a six month period for facility notification if notification were to be
required. Others favored a ``phase-in'' of the requirements.
Who must notify. Some commenters asked who must notify, the owner
or operator. They noted that these might be different persons. One
commenter suggested that the operator of the facility, the owner of any
improvements at the facility, and the owner of the land at the facility
should be required to submit facility notification. The commenter
argued that the United States government is the landowner most
prejudiced by the absence of a requirement of landowner involvement in
the preparation of an SPCC plan because an owner or operator can
prepare a minimal SPCC Plan and not even inform the landowner of it.
Location issues. Others questioned the proposed requirement for the
name, address, and zip code of the facility, arguing that provision of
such information was not always possible,

[[Page 47070]]

especially in remote rural areas. Some noted that drilling rigs move
from location to location as often as every few months. Commenters
suggested alternatives such as use of longitude and latitude, or the
Universal Transverse Mercator system, or a mailing address.
Storage capacity. A number of commenters had concerns about the
requirement for the total number and size of ASTs, and the total AST
capacity of the facility. Commenters noted that there was no space on
the form for containers less than 250 gallons. Other commenters asked
if additions to storage capacity would trigger a new notification. Some
commenters believed that storage capacity could be measured by SARA
Title III information.
Distance to navigable waters. The proposed requirement to detail
the distance to the nearest navigable water elicited many comments.
Some commenters noted that there was no definition of navigable waters
on the form, making it difficult for some responders to answer the
question. Others asserted that making the determination on distance to
navigable waters was a difficult one due to litigation concerning the
definition of the term. Yet other commenters thought that we should
specify a minimum distance to navigable waters, on the theory that only
facilities within a certain distance would have a reasonable
possibility of discharge to such waters.
Classification of facilities. One commenter noted that exploration
and production facilities rarely have Dun & Bradstreet numbers, and
that the information received from Dun & Bradstreet might be irrelevant
for our purposes. Regarding the reporting of Standard Industrial
Classification codes (SIC) (now replaced by North American Industry
Classification System (NAICS) codes), commenters asserted that EPA used
inaccurate codes, that no codes were listed for edible oil facilities,
and that the codes listed were misleading in that they did not cover
all possible industries regulated.
Use of oil. Permanently closed containers. Facilities using
primarily oil-filled equipment, not bulk storage containers, asked
whether they too were covered by the notification proposal. Other
commenters asked for clarification as to whether permanently closed
tanks were covered by the proposal.
Possible additional items. There were numerous comments on various
additional items for which EPA had requested comment, but which were
not included in the proposal. Possible additional items included:
latitude and longitude of the facility; location of environmentally
sensitive areas and potable water supplies; presence of secondary
containment; spill history; leak detection equipment and alarms; age of
the tanks; potential for adverse weather; and, for field verification
purposes, a requirement to have storage facilities placarded or
similarly identified. Most commenters opposed the inclusion of
additional items. Several supported these additions as well as the
addition of other information, particularly information concerning tank
materials, methods of construction (for example, field-or shop-erected)
and substance stored.
Response to comments. Withdrawal of proposal. We have decided to
withdraw the proposed facility notification requirement because we are
still considering issues associated with establishing a paper versus
electronic notification system, including issues related to providing
electronic signatures on the notification. Should the Agency in the
future decide to move forward with a facility notification requirement,
we will repropose such requirement.

Section 112.1(e)--Proposed as Sec. 112.1(f)--Compliance With Other Laws

Background. While today's rule is substantially similar to the
current one, EPA suggested in the 1991 preamble that facility owners
consider industry standards in preparing SPCC Plans. 56 FR 54617.
Comments. State rules. Several States wrote to ask EPA to be as
consistent with current State rules as possible. One industry commenter
complained that EPA rules were more stringent than some State rules.
Other industry commenters opposed either State or Federal regulation,
or both.
Industry standards. Several commenters wrote to urge that EPA
incorporate industry standards into the rule, on the theory that if EPA
wants to require these standards, they must be incorporated into the
rule. Others wrote to urge the inclusion of specific standards, such as
fire codes or steel tank codes.
Response to comments. State rules. Section 311(o)(2) of the CWA
specifically provides that nothing in section 311 ``shall be construed
as preempting any State or political subdivision thereof from imposing
any requirements or liability with respect to the discharge of oil * *
*.'' We are aware that Federal rules often set the standard for State
rules, and at least set a floor for State rules. Under CWA section
311(o)(2), States are free to impose more stringent standards relating
to prevention of oil discharges, or none at all. EPA encourages States
to set up their own oil pollution prevention programs because we
believe that oil pollution prevention efforts should be a joint
Federal-State effort.
Industry standards. Under this rule, a facility is required to at
least consider the use of all relevant measures, including the use of
industry standards, as a way to implement those measures. The
requirement comes in the language of revised Sec. 112.3(d)(1)(iii)
requiring the PE to attest that ``the Plan has been prepared in
accordance with good engineering practice, including consideration of
applicable industry standards, and with the requirements of this
part.'' A facility should use industry standards whenever possible in
preparing and implementing its SPCC Plan, and should discuss their use
in Plans. While facility owners or operators should look to specific
industry standards as a guide for preparing SPCC Plans, we do not
believe that incorporating specific standards into this rule is
appropriate. Such incorporation freezes standards into rules, which may
swiftly become outdated or obsolete.
Editorial changes and clarifications. The new introductory language
is, ``This part establishes requirements for the preparation and
implementation of Spill Prevention, Control, and Countermeasure (SPCC)
Plans.'' The new language covers all SPCC requirements, both general
and specific. That language replaces ``This part provides for * * *.''
The phrase ``Plans prepared in accordance with Secs. 112.7, 112.8,
112.9, 112.10, and 112.11'' was eliminated because new introductory
language makes it unnecessary.

Section 112.1(f)--Proposed as Sec. 112.1(g)--Plans for Exempted
Facilities

Background. This is a new section, proposed in 1993, that allows
the Regional Administrators (RAs) to require preparation of entire an
SPCC Plan, or applicable part, by the owner or operator of an otherwise
exempted facility, that is subject to the jurisdiction of EPA under
section 311(j) of the CWA. The proposal stems from the 1988 Interagency
SPCC Task Force and subsequent GAO report, ``Inland Oil Spills'' (GAO/
RCED-89-65).
Comments. Authority. One commenter called the proposal ``arbitrary
and capricious'' and feared political use of the authority. Some
commenters questioned EPA authority for the proposal.

[[Page 47071]]

Standard to use authority. One commenter favored the proposal and
suggested that we look at additional physical characteristics of the
facility in order to make a determination to require the owner or
operator to prepare an SPCC Plan. Other commenters asserted that the
standards for requiring Plans need to be specified, or that ``good
cause'' be the standard.
Response Plans. One commenter urged a ``vastly abbreviated''
version of this section in the event that the Regional Administrator
requires a small Appalachian facility to prepare a facility response
plan in addition to an SPCC Plan, because the ``extensive requirements
outlined in the appendices and attachments have little applicability''
to a small Appalachian oil field storage facility. The commenter added
that the availability of secondary containment at most Appalachian
facilities mitigates many of the requirements of the complete response
plan which is directed towards large oil storage tanks.
Appeals process. Other commenters called for an appeals process,
and specification of time frames within which the RA must act.
Response to comments. Authority. EPA believes that it has adequate
authority under section 311 of the CWA to require any facility within
its jurisdiction to prepare a Plan that could because of its location,
cause a discharge as described in Sec. 112.1(b). This authority is
broad enough to encompass the storage or use capacity of any exempted
facility within EPA's jurisdiction, regardless of size.
Standard to use authority. RAs may invoke this section to carry out
the purposes of the Act on a case-specific basis when it is needed to
prevent a discharge as described in Sec. 112.1(b), and thus protect the
environment. While we expect to use this section sparingly, it is
necessary to address gaps in other regulatory regimes that might best
be remedied by requiring a facility to have an SPCC Plan. Factors the
RAs may consider in making a determination that a facility needs an
SPCC Plan include, but are not limited to, the physical characteristics
of the facility, the presence of secondary containment, the discharge
history of the facility, and the proximity of the facility to sensitive
environmental areas such as wetlands, parks, or wildlife refuges. An
example of the use of this section might be when a facility is exempted
from SPCC rules because its storage capacity is below the regulatory
threshold, but the facility has been the cause of repeated discharges
as described in Sec. 112.1(b). The RA might require an entire Plan, or
might only require a partial Plan addressing secondary containment, for
example, to prevent future discharges as described in Sec. 112.1(b).
Partial Plans. We clarify that the RA may require partial Plans to
cover situations where the preparation of only a partial Plan may be
necessary, such as to supplement an existing document other than a Plan
or to address a particular environmental threat. The decision to
require a Plan (or partial Plan) could be based on the presence of
environmental concerns not adequately addressed under UST or NPDES
regulations, or due to other relevant environmental factors. The
section may be invoked when the RA determines it is necessary to
``carry out the purposes of the Act.''
The decision to require a partial Plan is separate from a decision
to require an amendment to a Plan. In one case, the assumption is that
a Plan doesn't exist; in the other, that an existing Plan needs
amendment.
Response Plans. Section 112.1(f) applies only to the total or
partial preparation of an SPCC Plan. It does not authorize the Regional
Administrator to require you to prepare a facility response plan. We
have withdrawn a proposal (see 1993 proposed Sec. 112.7(d)(1)) which
would have required you to prepare a response plan when your SPCC
facility lacked secondary containment. Therefore, most facilities will
incur no response planning costs. Instead, if your facility lacks
secondary containment, you must prepare a contingency plan following
the provisions of 40 CFR part 109, and otherwise comply with
Sec. 112.7(d). As a result, requirements to prepare a facility response
plan are contained solely in Sec. 112.20, and not Sec. 112.1(f).
Appeals process. We agree that an appeals process is appropriate
for this section. Therefore we have added a new paragraph (f)(5) to
include such a process, and have provided time frames for the process.
The appeals process is modeled upon current Sec. 112.4(f), which we
reproposed in 1991 and have finalized today.
Editorial changes and clarifications. We deleted the proposed
requirement to ``submit'' a Plan in paragraph (f)(2), because we only
require submission of Plans in certain circumstances, such as when
there has been a discharge(s) as described in Sec. 112.1(b) over the
threshold amount provided for in Sec. 112.4(a), and the RA believes
that submission of the Plan is necessary. We do not require Plan
submission as a general rule.

Section 112.2--Definitions

Background. Definitions proposed in 1993 and 1999, and promulgated
in the Facility Response Plan rule of 1994 and 2000 are reprinted in
the rule for the convenience of the reader. No substantive changes were
made to those definitions and they are not discussed further in this
preamble, except where we made editorial changes in today's rule. The
discussion for those editorial changes, and for proposed definitions
that were not already finalized in the 1994 and 2000 FRP rule, follows.
Adverse Weather
Editorial changes and clarifications. We have made slight editorial
changes to this definition, none of which are substantive. In the first
sentence, the phrase ``will be considered'' becomes ``must be
considered.'' In the second sentence, the phrase ``as appropriate'' is
placed in parentheses.
Alteration
Background. In 1993, we proposed a definition of ``alteration'' in
conjunction with the proposed rule for ensuring against brittle
fracture. We proposed the definition of ``alteration'' to mean ``any
work on a tank or related equipment involving cutting, burning,
welding, or heating operations that changes the physical dimensions or
configuration of a tank.''
Comments. One commenter suggested that we conform the proposed
definition of ``alteration'' with the API 653 definition, specifically
deleting the phase ``or related equipment.''
Response to comments. Related equipment. We agree with the
commenter and will not include the term ``or related equipment'' in the
definition to conform with API Standard 653, which does not include
alterations of related equipment as a criterion for brittle fracture
evaluation. In the preamble to the 1993 proposal, we gave examples of
alteration that included the addition of manways and nozzles greater
than 12-inch nominal pipe size and an increase or decrease in tank
shell height. 58 FR 8843.
Industry Standards. An industry standard that may be helpful in
understanding the definition of ``alteration'' is API Standard 653,
``Tank Inspection, Repair, Alteration, and Reconstruction.''
Editorial changes and clarifications. ``Tank'' becomes
``container.''
Breakout tank
Background. We proposed this definition and the definition of
``bulk storage tank'' in 1991 to clarify the distinction between
facilities regulated

[[Page 47072]]

by DOT and EPA. Breakout tanks are used mainly to compensate for
pressure surges or to control and maintain pressure through pipelines.
They are also sometimes used for bulk storage. These tanks are
frequently in-line, and may be regulated by EPA, DOT, or both. When a
breakout tank is used for both storage and for pipeline control, it
becomes in itself a ``complex,'' and is regulated as such. See the
discussion on ``complexes'' in today's preamble at
Sec. 112.1(d)(1)(ii).
Comments. A number of commenters suggested that EPA adopt the DOT
definition of breakout tank. Another commenter asked for guidance as to
which agency, DOT or EPA, regulates such tanks.
Response to comments. On the suggestion of commenters, EPA has
adopted a modified version of the DOT definition in 49 CFR 195.2. This
revision promotes consistency in the DOT and EPA definitions to aid the
regulators and regulated community. We modified the DOT definition by
substituting the word ``oil'' for ``hazardous liquid,'' because our
rules apply only to oil. We also use in the definition the term
``container'' rather than just ``tank'' to cover any type of container.
This terminology is consistent with other terminology used in this
rule.
A breakout tank that is used only to relieve surges in an oil
pipeline system or to receive and store oil transported by a pipeline
for reinjection and continued transportation by pipeline is subject
only to DOT jurisdiction. When that same breakout tank is used for
other purposes, such as a process tank or as a bulk storage container,
it is no longer solely within the definition of breakout tank, and may
be subject to EPA or other jurisdiction with the new use.
EPA and DOT also signed a joint memorandum dated February 4, 2000,
clarifying regulatory jurisdiction on breakout tanks. That memorandum
is available to the public upon request. It is also available on our
Web site at http://www.epa.gov/oilspill under the ``What's New''
section.
Bulk Storage Container--Formerly Bulk Storage Tank
Background. Along with ``breakout tank,'' we proposed this
definition in 1991 to help clarify the distinctions between facilities
regulated by EPA and those regulated by DOT. The proposed definition
was originally for ``bulk storage tank.'' As explained below, we
changed the definition to ``bulk storage container.''
Comments. Many electric utility commenters urged that EPA
explicitly exclude electrical equipment from the definition because
such equipment is not bulk storage. Other commenters asked for a
minimum size to which the definition should apply.
Response to comments. We agree that electrical equipment is not
bulk storage. See the above discussion on the applicability of the rule
to electrical and other operating equipment under Sec. 112.1(b). See
also the definition of ``bulk storage container'' in Sec. 112.2. For a
discussion of minimum size containers to which the rule applies, see
the discussion under Sec. 112.1(d)(2)(ii).
Editorial changes and clarifications. ``Tank'' becomes
``container'' because ``container'' is more accurate. Many containers
storing oil are not tanks, but provide bulk storage. A bulk storage
container may be either aboveground, partially buried, bunkered, or
completely buried.
The definition of ``bulk storage container'' adopted in today's
rule should not be confused with the definitions of ``container'' used
in several fire codes. Sometimes those codes limit a container to one
below a certain size. See for example, the BOCA National Fire
Prevention Code, section F-2302.1 (1999) and NFPA 30 section 1-6
(1996). The definition adopted in today's rule is broader than the
definitions in the codes in that it is not limited to a particular
amount of storage capacity.
We also clarify in today's rule that oil-filled electrical,
operating, or manufacturing equipment is not a bulk storage container.
Bunkered Tank
Background. We proposed this definition in 1991 to clarify that
bunkered tanks are a subset of partially buried tanks, and as such,
subject to part 112 as aboveground tanks.
Comments. One commenter wrote that the definition is
``undecipherable and should be rewritten.'' The commenter wrote that
the definition should be, ``Bunkered tank means a partially buried
tank, the portion of which lies above grade is covered with earth,
sand, gravel, asphalt, or other material.''
Response to comments. EPA agrees that the commenter's proposed
definition is clearer, and we have used it with slight editorial
changes.
Editorial changes and clarifications. We added a sentence to the
definition noting that bunkered tanks are a subset of aboveground
storage containers for purposes of this part.
Completely Buried Tank--Proposed as ``Underground Storage Tank''
Background. In 1991, we proposed adding a definition for
``underground storage tank.'' It differed from the Underground Storage
Tank (UST) program definition in 40 CFR part 280 because it excluded
tanks which are partially buried or bunkered, as well as some other
tanks or containers included within the part 280 definition, such as
containers storing certain hazardous substances. Partially buried and
bunkered tanks still have a potential to discharge oil into navigable
waters, adjoining shorelines, or affecting natural resources.
Therefore, we proposed to retain those tanks within our regulatory
jurisdiction, while we proposed to exclude all completely buried tanks
storing petroleum that are subject to all of the technical requirements
of the UST program (40 CFR part 280 or a State program approved under
40 CFR part 281).
Comments. Consistency with the definition of underground tanks in
40 CFR part 280. One commenter supported the proposal. A number of
commenters thought that the definitions of underground tanks in parts
112 and 280 should be consistent.
Vaulted tanks. Commenters divided on whether subterranean vaulted
tanks should be considered ASTs or USTs. The commenter opposing the
treatment of subterranean vaulted tanks as ASTs in the UST definition
argued that discharges from those tanks pose no threat to the
environment or public health.
Response to comments. Consistency with the definition of
underground tanks in 40 CFR part 280. We disagree that the scope of the
part 112 exclusion for underground tanks should be consistent with the
scope of the definition of ``underground storage tank'' in part 280.
The programs are designed for different purposes, therefore, the
definitions used will necessarily differ. To eliminate confusion with
the part 280 definition, we have changed the proposed part 112
definition of ``underground storage tank'' to ``completely buried
tank'' in this final rule.
Part 280 includes within its UST definition tanks which have a
volume up to ninety percent above the surface of the ground, which are
considered aboveground tanks for part 112 purposes. Part 280 also
regulates underground storage tanks containing hazardous substances,
while the SPCC program regulates only facilities storing or using oil
as defined in CWA section 311. The SPCC program regulates

[[Page 47073]]

facilities with relatively large completely buried storage capacity,
while the bulk of facilities regulated under part 280 are small
capacity facilities such as gasoline filling stations. The SPCC program
also regulates other types of containers and facilities which part 280
excludes, such as: tanks used for storing heating oil for consumptive
use on the premises where stored; certain pipeline complexes where oil
is stored; and, oil-water separators.
Vaulted tanks. Aboveground vaulted tanks are clearly ASTs. While
subterranean vaulted tanks may be completely below grade, they may not
be completely covered with earth. Because of their design, they pose a
threat of discharge into the environment, and are thus excluded from
our definition of completely buried tank. Subterranean vaulted tanks
are also excluded from the part 280 UST definition of underground tank
if the storage tank is situated upon or above the surface of the floor
in an underground are providing enough space for physical inspection of
the exterior of the tank. Therefore, if subterranean tanks were
excluded from our definition of completely buried tank, they would
likely not be regulated at all, and thereby be likely to pose a greater
threat to the environment.
Other completely buried tanks excluded from the part 280 UST
definition. Tanks in underground rooms or above the floor surface, or
in other underground areas such as basements, cellars, mine workings,
drifts, shafts, or tunnels are also not considered USTs for purposes of
the part 280 definition. The purpose of the part 112 definition is to
clarify that these are tanks that are technically underground but that,
in a practical sense, are no different from aboveground tanks. They are
situated so that, to the same extent as tanks aboveground, physical
inspection for leaks is possible. Also, some of these tanks are
designed such that in case of a discharge, oil would escape to
navigable waters or adjoining shorelines, a result which our program
seeks to prevent.
Editorial changes and clarifications. The words ``completely below
grade and * * *'' were added to the first sentence of the definition.
The purpose of that revision was to distinguish completely buried tanks
from partially buried and bunkered tanks, which break the grade of the
land, but are not completely below grade. We further clarify that such
tanks may be covered not only with earth, but with sand, gravel,
asphalt, or other material. The clarification brings the definition
into accord with the coverings noted in the definition of ``bunkered
tank.'' In the second sentence, the word ``subterranean'' was deleted
from ``subterranean vaults'' because all vaulted tanks, whether
subterranean or aboveground, are counted as aboveground tanks for
purposes of this rule.
Contiguous Zone
Background. The definition of ``contiguous zone'' was proposed in
1991 to conform with 1978 amendments to the CWA, and the 1990
amendments to the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) dealing with the scope of discharges. EPA
received no substantive comments. Thus, we have finalized the proposed
definition.
The contiguous zone is the area that extends nine miles seaward
from the outer limit of the territorial sea. A presidential
proclamation of December 17, 1988 (No. 5928, 54 FR 777, January 9,
1989) extended the territorial seas of the United States to 12 nautical
miles from the baselines of the United States as determined in
accordance with international law. However, the proclamation provided
that nothing therein ``extends or otherwise alters existing federal or
state law or any jurisdiction, rights, legal interests, or obligations
derived therefrom * * *.''
Contract or Other Approved Means
Editorial changes and clarifications. We corrected the title of the
definition to read ``contract or other approved means,'' in place of
``contract or other approved.'' We also changed some plural references
to singular ones.
Discharge
Background. The 1991 proposed changes to the definition of
``discharge'' reflected changes to the statutory definition in the 1978
amendments to the CWA. For clarity, the words ``of oil'' were added in
the first sentence because the definition applies only to discharges of
oil.
Comments. One commenter asked for a clarification of the term
``discharge.'' The commenter asked whether a drop of diesel fuel that
fell onto the outside casing of a tank during refilling would be
considered a ``discharge,'' even if the oil did not reach the ground.
Other commenters recommended that the definition include at least an
imminent danger that the spilled material would reach a navigable
waterway. Another commenter asked EPA to exempt from the definition
those discharges regulated under the CWA, such as National Pollutant
Discharge Elimination System (NPDES) discharges. The rationale was that
any potential environmental impacts of these discharges have been
considered in the issuance of a facility's NPDES permit and there is no
reason to subject such facilities to dual regulation.
Response to comments. A discharge includes, but is not limited to,
any ``spilling, leaking, pumping, pouring, emitting, emptying, or
dumping,'' of oil. A discharge as described in Sec. 112.1(b) need not
reach the level of an imminent danger to affected lands, waters, or
resources to be a discharge. It includes any spilling, leaking,
pumping, pouring, emitting, emptying, or dumping of any amount of oil
no matter where it occurs. It may not be a reportable discharge under
40 CFR part 110 if oil never escapes the secondary containment at the
facility and is promptly cleaned up. If the discharge escapes secondary
containment, it may become a discharge as described in Sec. 112.1(b),
and if that happens, the discharge must then be reported to the
National Response Center.
Foreseeable or chronic point source discharges that are permitted
under section 402 of the CWA, and that are either due to causes
associated with the manufacturing or other commercial activities in
which the discharger is engaged or due to the operation of the
treatment facilities required by the NPDES permit, are to be regulated
under the NPDES program. Other oil discharges in reportable quantities
are subject to the requirements of section 311 of the CWA. Such spills
or discharges are governed by section 311 even where the discharger
holds a valid and effective NPDES permit under CWA section 402.
Therefore, a discharge of oil to a publicly owned treatment work (POTW)
would not be a discharge under the Sec. 112.2 definition if the
discharge is in compliance with the provisions of the permit; or
resulted from a circumstance identified and reviewed and made a part of
the public record with respect to a permit issued or modified under
section 402; or if it were a continuous or anticipated intermittent
discharge from a point source, identified in a permit or permit
application under section 402, which is caused by events occurring
within the scope of relevant operating or treatment systems. 33 U.S.C.
1321(a)(2); 40 CFR 117.12. Otherwise, the discharge is subject to the
provisions of section 311 of the CWA as well as the unpermitted
discharge prohibition of section 301(a) of the CWA. 33 U.S.C. 1311(a).
Editorial changes and clarifications. We have revised the citation
for the River and Harbor Act of 1899 so that it refers only to the U.S.
Code, and have

[[Page 47074]]

deleted the reference to the Statutes at Large.
Facility
Background. Because we regulate facilities in the SPCC rule, we
proposed a definition of ``facility'' in 1991. It is based on the
Memorandum of Understanding (MOU) between the Secretary of DOT and the
EPA Administrator, dated November 24, 1971 (36 FR 24080). A discussion
of the types of facilities covered is found in Appendix A to this rule.
Comments. Facility boundaries. One commenter asked for
clarification as to whether the facility is the petroleum storage site
or a single tank at the site.
Electrical or operational equipment. Utility commenters argued that
electrical equipment is not a facility because no oil is being stored
in the equipment.
Buried pipelines, gathering lines, flowlines, waste treatment
equipment. One commenter urged that buried pipelines at mining sites
should be excluded from the definition because such pipelines are often
put in place without recording their location. The commenter added that
typically the lines are emptied and abandoned as part of final
reclamation. Other commenters urged the exclusion of gathering lines
and flowlines from the definition because of the cost of providing
secondary containment and contingency planning for such lines. Another
commenter protested the inclusion of waste treatment as a possible
activity covered under the definition, and therefore the rule.
Mobile or fixed facilities. One commenter urged that mobile
equipment be excluded from the definition because the commenter
believed that the SPCC Plan would otherwise have to be amended each
time the mobile equipment is moved.
Response to Comments. Facility boundaries. A facility includes any
building, structure, installation, equipment, pipe or pipeline in oil
well drilling operations, oil production, oil refining, oil storage,
and waste treatment, or in which oil is used at a site, whether it is
mobile or fixed. It may also include power rights of way connected to
the facility. The extent of the facility will vary according to the
circumstances of the site. It may be as small as a single container or
as large as all of the structures and buildings on a site. Some
specific factors to use in determining the extent of a facility may be
the ownership or operation of those buildings, structures, equipment,
installations, pipes or pipelines, or the types of activities being
carried on at the facility.
Electrical or operational equipment. We disagree with commenters
who maintained that electrical equipment ``using'' oil as opposed to
``storing'' it should not fall within the definition of ``facility'' in
part 112. Section 311(j)(1)(C) of the CWA, which authorizes EPA to
promulgate the SPCC rule, does not distinguish between the storage and
the usage of oil. The section simply authorizes EPA, as delegated by
the President, to establish ``requirements to prevent discharges of oil
* * * from onshore and offshore facilities, and to contain such
discharges * * *.'' 33 U.S.C. 1321(j)(1)(C). Nor do the definitions of
``onshore facility'' or ``offshore facility'' in sections 311(a)(10) of
the CWA distinguish between the use or storage of oil. Although the
definition of ``facility'' in section 1001(9) of the OPA is limited by
the ``purpose'' of the facility, no such limitation appears in CWA
section 311. Moreover, EPA believes that although much of the
electrical equipment may arguably ``use'' oil, in effect the oil is
``stored'' in the equipment because it remains in the equipment for
such long time frames. We added language to the definition to clarify
that such types of equipment are facilities subject to the SPCC rule
whether they are storing or using oil. Therefore, we revised the
definition to include the words ``or in which oil is used.'' However,
we note that a facility which contains only electrical equipment is not
a bulk storage facility.
Buried pipelines, gathering lines, flowlines, waste treatment
equipment. Buried pipelines that carry oil at mining sites are part of
a facility unless they are permanently closed as defined in Sec. 112.2.
Such pipelines may otherwise be the source of a discharge as described
in Sec. 112.1(b). Likewise, the same rationale applies to gathering
lines and flowlines, and waste treatment equipment. Note that any
facility or part thereof used exclusively for wastewater treatment and
not to satisfy any part 112 requirement is exempted from the rule. The
production, recovery, or recycling of oil is not considered wastewater
treatment for purposes of the rule. See Sec. 112.1(d)(6).
While such gathering lines, flowlines, and waste treatment
equipment are subject to secondary containment requirements, the
appropriate method of secondary containment is an engineering question.
Double-walled piping may be an option, but is not required by these
rules. The owner or operator and Professional Engineer certifying the
Plan should consider whether pursuant to good engineering practice,
double-walled piping is the appropriate method of secondary containment
according to good engineering practice. In determining whether to
install double-walled piping versus an alternative method of secondary
containment, you could consider such factors as the additional
effectiveness of double-walled piping in preventing discharges, the
technical aspects of cathodically protecting any buried double-walled
piping system, the cost of installing double-walled pipe, and the
potential fire and safety hazards of double-walled pipes. Earthen or
natural structures may be acceptable if they contain and prevent
discharges as described in Sec. 112.1(b), including containment that
prevents discharge of oil through groundwater that might cause a
discharge as described in Sec. 112.1(b). What is practical for one
facility, however, might not work for another.
Mobile or fixed facilities. Either mobile or fixed equipment might
be the source of a discharge as described in Sec. 112.1(b), and
therefore both are included within the definition of ``facility.''
Section 112.3(c) of this rule already provides that it is not necessary
to amend your Plan each time a mobile facility moves to a new site.
Editorial changes and clarifications. In the first sentence we
added the words ``oil gathering, oil processing, oil transfer, oil
distribution'' to the list of activities listed. The added activities
track the activities listed in Sec. 112.1(b). We also clarify that a
vessel or a public vessel is not a facility or part of a facility. We
deleted the word ``may'' in the second sentence of the definition
regarding site-specific factors of facility boundaries, because it is
redundant with the inclusion of the words, ``including, but not limited
to.''
Fish and Wildlife and Sensitive Environments
Editorial changes and clarifications. We made four editorial
changes. We deleted the word ``either'' in the first sentence because
it is unnecessary. ``Endangered/threatened species'' becomes
``endangered or threatened species.'' We also deleted the colon in the
last sentence because it is unnecessary. ``Discharges of oil'' becomes
``discharges.''
Maximum Extent Practicable
Editorial changes and clarifications. In the first sentence the
phrase ``the limitations used to determine'' becomes ``within the
limitations used to determine.'' In the beginning of second sentence,
``It considers * * *.'' becomes ``It includes* * *.''

[[Page 47075]]

Navigable Waters
Background. We proposed a revision of the definition of ``navigable
waters'' in 1991. The rationale was to have the part 112 definition
track the definition of ``navigable waters'' in 40 CFR part 110, which
deals with the discharge of oil.
Comments. Clarification of the meaning of navigable waters, maps. A
number of commenters asked for a clarification of the definition of
navigable waters because of the difficulty of determining which waters
fall within the definition. Some asked for EPA maps to aid in this
determination.
Navigability, legal authority. Other commenters believed that the
definition related to navigability. Some thought the definition was
legally unsupportable because it is so broad. One commenter suggested
that the term be limited to unobstructed streams that free flow at
least fourteen consecutive days per year.
Wetlands. Another commenter believed that the definition should not
apply to wetlands because SPCC protections are not needed when wetlands
are regulated under a permit program.
Response to comments. Clarification of the meaning of navigable
waters, maps. In this definition, we clarify what we mean by navigable
waters by describing the characteristics of navigable waters and by
listing examples of navigable waters. We also note in the definition
that certain waste treatment systems are not navigable waters.
We are unable to provide a map to identify all navigable waters
because not all such waters have been identified on a map. However, the
rule provides guidelines as to where such waters may be found.
Navigability, legal authority. Navigable waters are not only waters
on which a craft may be sailed. Navigable waters include all waters
with a past, present, or possible future use in interstate or foreign
commerce, including all waters subject to the ebb and flow of the tide.
Navigable waters also include intrastate waters which could affect
interstate or foreign commerce. The case law supports a broad
definition of navigable waters, such as the one published today, and
that definition does not necessarily depend on navigability in fact.
Wetlands. We disagree that SPCC regulation of wetlands is
redundant. The definition includes wetlands, as defined in Sec. 112.2
and discussed below, because wetlands are waters of the United States.
Different programs serve different purposes, and merely because an
activity or function is regulated for one purpose (for example, NPDES)
does not mean that regulation for another purpose is redundant. The
purpose of a permit discharge system is waste treatment and management.
The purpose of the SPCC rule is oil pollution prevention.
Offshore Facility
Background. EPA proposed in 1991 to revise the definition of
``offshore facility'' to conform with the CWA and NCP definitions.
Comments. EPA or DOI jurisdiction. One commenter noted that if the
definition of offshore facility is taken in context with the definition
of navigable waters, then many facilities traditionally subject to EPA
jurisdiction would become subject to DOI authority.
CWA definition. Another commenter suggested that the EPA definition
should instead be that contained in CWA section 311(a)(11).
Response to comments. EPA or DOI jurisdiction. The 1994 Memorandum
of Understanding between DOI, DOT, and EPA addresses the jurisdictional
issue to which the commenter refers, transferring to EPA those non-
transportation-related offshore facilities landward of the coastline.
CWA definition. EPA agrees with the commenter urging that the EPA
definition track the statutory definition. The part 112 definition,
except for minor editorial changes, is identical to the CWA definition.
There is no difference between the substance of the part 112 definition
and the CWA definition.
Editorial changes and clarifications. Permanently moored vessels
and other former transportation equipment. We also note that barges
which store oil, and have been determined by the Coast Guard to be
permanently moored, are no longer vessels, but storage containers that
are part of an offshore facility. Likewise, a container, whether
onshore or offshore, which was formerly used for transportation, such
as a truck or railroad car, which now is used to store oil, is no
longer used for a transportation purpose, and is a bulk storage
container.
Oil
Background. In 1991, EPA reprinted the definition of oil without
suggesting any changes. In response to Edible Oil Regulatory Reform Act
(EORRA) of 1995 (33 U.S.C. 2720) requirements, we have reworded the
definition to include the categories of oil included in EORRA. Those
categories are: (1) Petroleum oils, (2) animal fats and vegetable oils;
and, (3) other non-petroleum oils and greases. Animal fats include
fats, oils, and greases of animal origin (for example, lard and
tallow), fish (for example, cod liver oil), or marine mammal origin
(for example, whale oil). Vegetable oils include oils of vegetable
origin, including oils from seeds, nuts, fruits, and kernels. Examples
of vegetable oils include: corn oil, rapeseed oil, coconut oil, palm
oil, soy bean oil, sunflower seed oil, cottonseed oil, and peanut oil.
Other non-petroleum oils and greases include coal tar, creosote,
silicon fluids, pine oil, turpentine, and tall oils. Petroleum oils
include crude and refined petroleum products, asphalt, gasoline, fuel
oils, mineral oils, naphtha, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil.
EORRA requires that Federal agencies establish separate classes for
at least these three types of oils. It further requires agencies to
differentiate between those classes of oil in relation to their
environmental effects, and their physical, chemical, biological, and
other characteristics. EPA has provided new subparts within part 112 to
facilitate differentiation between the categories of oil listed in
EORRA. In an advance notice of proposed rulemaking, published on April
8, 1999 (64 FR 17227), we requested ideas on how to differentiate among
the SPCC requirements for facilities storing or using the various
categories of oil. These ideas for further differentiation will be
considered in a future rulemaking.
Today's amendments to the definition and the creation of subparts
have no effect on information collection, because we already include
all types of oil in our information collection burden calculations.
Similarly, the definition imposes no new requirements, because all oils
have always been subject to the substantive requirements of the rule.
Comments. What is oil. Several commenters favored the proposed 1991
definition, which is identical to the current definition. Some asked
for clarification as to its scope, particularly in reference to animal
and vegetable oils, synthetic oils, mineral oils, and petroleum
derivatives.
Specific substances. Others asked about specific substances like
aromatic hydrocarbons and asphaltic cement. One commenter asked if
bilge water is oil.
Authority. Some commenters suggested that EPA's authority did not
extend beyond petroleum-based oils.
Exclusions. Some commenters sought exclusions from the definition,
generally based on contentions that certain oils (such as vegetable
oils) are not harmful

[[Page 47076]]

to the environment if discharged. One commenter suggested a definition
based on the liquidity of oil, founded on a rationale that solid or
gaseous oils do not pose a threat to waters of the United States when
discharged at a fixed facility. Another commenter urged that we exempt
refined petroleum products from the definition because releases from
many of these products are regulated by other statutes, such as the
Solid Waste Disposal Act. One State commenter noted that animal and
vegetable oils are not subject to regulation under that State's
statutes regulating oil.
Oil mixed with wastes or hazardous substances. Others asked for
clarification as to whether mixed substances, used oil, and waste oils
were oil.
Part 280 definition. One commenter noted the difference in
definitions between the part 112 definition and the definition in 40
CFR part 280.
Response to comments. What is oil. EPA interprets the definition of
oil to include all types of oil, in whatever form, solid or liquid.
That includes synthetic oils, mineral oils, vegetable oils, animal
fats, petroleum derivatives, etc.
Specific substances. As to certain specific substances, asphaltic
cement is oil because it is a petroleum-based product and exhibits oil-
like characteristics. A discharge of asphaltic cement may violate
applicable water quality standards, or cause a film or sheen or
discoloration of the water or adjoining shorelines or cause a sludge or
emulsion to be deposited beneath the surface of the water or upon
adjoining shorelines. Aromatic hydrocarbons may or may not be oil,
depending on their physical characteristics and environmental effects.
Some aromatic hydrocarbons are hazardous substances. Bilge water that
contains sufficient oil such that its discharge would violate the
standards set out in 40 CFR 110.3 is considered oil. The percentage of
oil concentration in the water is not determinative for the purpose of
the definition or the discharge standards.
Authority. We disagree that our authority only extends to
petroleum-based oils. Our interpretation is consistent with
Congressional intent as expressed in section 311(a)(1) of the CWA,
which extends to all types of oils in any form. EPA's definition tracks
that statutory definition. Our revised definition also reflects EORRA
requirements for differentiation. EORRA did not expand or contract the
universe of substances that are oils, it only required differentiation,
when necessary, between the requirements for facilities storing or
using different types of oil.
Exclusions. While States may choose to regulate all oils or some
oils, the CWA definition is designed to prevent the discharge of all
oils.
A definition based on liquidity would exclude solid oils, such as
certain animal fats, a result that would be inconsistent with
Congressional intent. Concerning gaseous oils, see our discussion on
Highly volatile liquids below.
While releases or discharges of some refined petroleum products may
be regulated under the Solid Waste Disposal Act as waste products, that
program is dedicated more to waste management, and does not regulate
storage of non-waste oil.
All oils, including animal fats and vegetable oils, can harm the
environment in many ways. Oil can coat the feathers of birds, the fur
of mammals and cause drowning and hypothermia and increased
vulnerability to starvation and predators from lack of mobility.
Oils can act on the epithelial tissue of fish, accumulate on gills,
and prevent respiration. The oil coating of surface waters can
interfere with natural processes, oxygen diffusion/reaeration and
photosynthesis. Organisms and algae coated with oil may settle to the
bottom with suspended solids along with other oily substances that can
destroy benthic organisms and interfere with spawning areas.
Oils can increase biological or chemical oxygen demand and deplete
the water of oxygen sufficiently to kill fish and other aquatic
organisms.
Oils can cause starvation of fish and wildlife by coating food and
depleting the food supply. Animals that ingest large amounts of oil
through contaminated food or preening themselves may die as a result of
the ingested oil. Animals can also starve because of increased energy
demands needed to maintain body temperature when they are coated with
oil.
Oils can exert a direct toxic action on fish, wildlife, or their
food supply. Oils can taint the flavor of fish for human consumption
and cause intestinal lesions in fish from laxative properties. Tainted
flavor of fish used for human consumption and the causation of rancid
odors are public health or welfare concerns within the scope of our
rules. Tainted flavor of fish used for human consumption may indicate a
disease in the fish which could render them inedible and thus have a
substantial impact on the fishermen who harvest them and communities
who may rely on them for a food supply.
Oils can foul shorelines and beaches. Oil discharges can create
rancid odors. Rancid odors may cause both health impacts and
environmental impacts. For example, the 1991 Wisconsin Butter Fire and
Spill resulted in a discharge of melted butter and lard. After the
cleanup was largely completed, the Wisconsin Department of Natural
Resources declared as hazardous substances the thousands of gallons of
melted butter that ran offsite and the mountain of damaged and charred
meat products spoiling in the hot sun and creating objectionable odors.
The Wisconsin DNR stated that these products posed an imminent threat
to human health and the environment. 62 FR 54526.
Highly volatile liquids. We do not consider highly volatile liquids
that volatilize on contact with air or water, such as liquid natural
gas, or liquid petroleum gas, to be oil. Such substances do not violate
applicable water quality standards, do not cause a reportable film or
sheen or discoloration upon the surface of water or adjoining
shorelines, do not cause a sludge or emulsion to be deposited beneath
the surface of the water or upon adjoining shorelines, and are not
removable. Therefore, there would be no reportable discharge as
described in 40 CFR 110.3.
Oil mixed with wastes or hazardous substances. Oil means oil of any
kind or in any form, including, but not limited to: fats, oils, or
greases of animal, fish, or marine mammal origin; vegetable oils,
including oils from seeds, nuts, fruits, or kernels; and, other oils
and greases, including petroleum, fuel oil, sludge, synthetic oils,
mineral oils, oil refuse, or oil mixed with wastes other than dredged
spoil.
Part 280 definition. The definition of petroleum in 40 CFR part 280
is a subset of the part 112 definition of ``oil.'' The part 112
definition of oil is broader than the part 280 definition of petroleum
because part 112 regulates all types of oils, whereas part 280
regulates only petroleum.
Oil drilling, production, or workover facilities (offshore)
Background. See the definition of ``production facility,'' into
which this definition has been merged.
Oil Production Facilities (Onshore)
Background. See the definition of ``production facility,'' into
which this definition has been merged.
Onshore Facility
Background. As proposed, we deleted as unnecessary surplus the
reference to the facility not being transportation-

[[Page 47077]]

related. There were no substantive comments.
Partially Buried Tank
Background. In 1991, EPA proposed the definition of ``partially
buried tank'' to clarify the distinction between partially buried tanks
and underground storage tanks. We have renamed underground tanks in
this rule as ``completely buried tanks,'' i.e., those tanks completely
covered with earth. Partially buried tanks are subject to the SPCC rule
the same as aboveground containers.
Comments. One commenter wrote that the definition as proposed was
``undecipherable'' and should be rewritten. That commenter suggested
another definition for clarity. Two other commenters suggested that we
adopt the part 280 UST definition for partially buried tank, which
includes any tank system such as tank and piping which has a volume of
10 percent or more beneath the surface of the ground.
Response to comments. We agree that the definition could be clearer
and have clarified it. We decline to adopt the part 280 UST definition
(at 40 CFR 280.12) and to classify partially buried tanks as completely
buried tanks, because they are not. The UST definition might also
exclude some tanks or containers which would be covered by the SPCC
definition. The UST definition includes tanks whose volume (including
the volume of underground pipes connected thereto) are 10 percent or
more beneath the surface of the ground. The SPCC definition of
``partially buried tank'' contains no volume percentage and applies to
any tank that is partially inserted or constructed in the ground, but
not entirely below grade, and not completely covered with earth.
Editorial changes and clarifications. We clarify that partially
buried tanks may be covered not only with earth, but with sand, gravel,
asphalt, or other material. The clarification brings the definition
into accord with the coverings noted in the definition of ``bunkered
tank.'' We added a sentence to the definition noting that partially
buried tanks are considered aboveground storage containers for purposes
of this part.
Permanently Closed
Background. EPA proposed a definition of ``permanently closed'' in
1991 to clarify the scope of facilities and tanks or containers
excluded from coverage under the SPCC rule. Permanently closed
containers are those containers which are no longer capable of storing
or using oil. Permanently closed facilities are those facilities which
are no longer capable of storing or using oil.
In permanently closed containers and facilities, physical changes
have been made so that storage capacity or use is rendered impossible.
Therefore, the definition describes those changes which must have
occurred before a container or facility is ``permanently closed.''
Comments. In general. Several commenters favored the proposed
definition. Others opposed it as unnecessary, believing that ``if a
tank is not used for the storage of oil, it simply is not subject to
the provisions of the SPCC regulations.'' Finally, several commenters
suggested that the definition specifically exclude temporarily closed
tanks.
Waste disposal. Several commenters urged that the part of the
proposal that dealt with waste disposal be deleted because waste
disposal is already covered under other programs and should not be a
concern of spill prevention unless flowable oil is part of the waste.
Non-oil products. One commenter asked for clarification that a
container which is no longer used for oil but is used for some non-oil
product be considered permanently closed.
Connecting lines. Another commenter asked for clarification as to
the meaning of connecting lines. The commenter assumed that connecting
lines means the sections of pipe that run between the tank and the
nearest block valve.
Explosive vapors. Numerous commenters urged that EPA delete any
rules dealing with explosive vapors on the theory that such vapors are
regulated by the Occupational Health and Safety Administration (OSHA)
program and other programs. Many of these same commenters suggested
that placing a sign on a tank indicating that it has been freed of gas
is not a good safety practice because gas might subsequently build up
within the tank with catastrophic results.
Retroactivity. Several commenters suggested that the requirements
for a tank to be permanently closed should not be applied retroactively
to tanks previously removed from service. The rationale was that the
cost would be prohibitive, although commenters did not provide specific
cost estimates, and that it might cause confusion as to which tanks
would have to be included in facility capacity calculations. These
commenters also asserted that such tanks have been abandoned and empty,
sometimes for many years, and pose no threat of discharge.
Response to comments. In general. A definition is necessary to
clarify when a container is permanently closed and no longer used for
the storage of oil. Containers that are only closed temporarily may be
returned to storage purposes and thus may present a threat of
discharge. Therefore, they will continue to be subject to the rule.
Waste disposal. Reference to waste disposal in accordance with
Federal and State rules in proposed Sec. 112.2(o)(1) was deleted as
unnecessary surplus. EPA agrees that other programs adequately handle
waste disposal.
Non-oil products. Containers that store products other than oil and
never store oil, are not subject to the SPCC rule whether they are
``permanently closed'' as defined or not. If the containers sometimes
store oil and sometimes store non-oil products, they are subject to the
rule.
Connecting lines. We agree with the commenter's assumed definition
of connecting lines. Connecting lines that have been emptied of oil,
and have been disconnected and blanked off, are considered permanently
closed.
Explosive vapors. We deleted proposed Sec. 112.2(o)(2) on the
suggestion of commenters that references to explosive vapors are an
OSHA matter and inappropriate for EPA rules. We modified proposed
Sec. 112.2(o)(3) to eliminate the reference to signs warning that
``vapors above the LEL are not present,'' because the operator cannot
guarantee that warning remains correct. To help prevent a buildup of
explosive vapors, we have revised the definition to provide that
ventilation valves need not be closed. We agree with commenters that a
sign might be misleading and dangerous.
Retroactivity. We believe that containers that have been
permanently closed according to the standards prescribed in the rule
qualify for the designation of ``permanently closed,'' whether they
have been closed before or after the effective date of the rule.
Containers that cannot meet the standards prescribed in the rule will
not qualify as permanently closed. We disagree that the cost of such
closure is prohibitive. We have simplified the proposal and deleted the
proposed requirement to render the tank free of explosive vapor.
Therefore, costs are lower. To clarify when a container has been
closed, we have amended the rule to require that the sign noting
closure show the date of such closure. The date of such closure must be
noted whether it occurred before or after the effective date of this
provision. Some States and localities require a permit for tank
closure. A document noting a State closure inspection may serve as

[[Page 47078]]

evidence of container closure if it is dated.
Industry standards. Industry standards that may be useful to effect
the permanent closure of containers or facilities include: (1) National
Fire Protection Association (NFPA) 30, ``Flammable and Combustible
Liquids Code''; (2) Building Officials and Code Administrators
International (BOCA), ``National Fire Prevention Code''; (3) American
Petroleum Institute (API) Standard 2015, ``Safe Entry and Cleaning of
Petroleum Storage Tanks''; and, (4) API Recommended Practice 1604,
``Removal and Disposal of Used Underground Petroleum Storage Tanks.''
Editorial changes and clarifications. ``Tank'' becomes
``container.'' We revised the introduction to the definition to remove
the phrase ``that has been closed'' because the definition would have
been circular with that language. Instead the introduction references
the events which must have occurred in order for a container to meet
the definition.
Person
Background. The definition of ``person'' proposed in 1991 was
substantively unchanged from the current rule.
Comments. We received one comment which urged that we should make
clear that the United States is bound by every provision of these
rules.
Response to comments. See the discussion above (at Sec. 112.1(c))
for the applicability of the rule to Federal agencies and facilities.
Production Facility
Background. The definition of ``production facility'' replaces two
definitions in the proposed rule, i.e., Oil drilling, production, or
workover facilities (offshore), proposed Sec. 112.2(j), and Oil
production facilities (onshore), proposed Sec. 112.2(k). We replaced
the two proposed definitions with the revised definition for editorial
brevity as the proposed definitions contained many identical elements.
This editorial effort effects no substantive changes in the
requirements for the particular types of production facilities. Each
facility must follow the requirements applicable to that facility,
which is generally based on its operations, for example, a workover
facility.
Comments. Flowlines and gathering lines. Several commenters
suggested that flowlines and gathering lines should be deleted from the
definition because they believed that the installation of structures
and equipment to prevent discharged oil from reaching navigable waters
is not practicable for flowlines and gathering lines.
Wells and separators. Other commenters also argued for the
exemption of wells and separators.
DOT definition. Another commenter urged consistency between the
proposed EPA definition and the DOT definition found at 49 CFR 195.2.
Single oil or gas field, single operator. One commenter asserted
that the inclusion of the phrases ``in a single oil or gas field'' and
``operated by a single operator'' in the definition is confounding. The
commenter urged that the producing segment of the industry needs to be
able to combine facilities into one SPCC Plan with an identification of
the wells to which that Plan applies. The commenter questioned whether
the inclusion of the word ``single'' would preclude an operator's
ability to do so.
Natural gas. Another commenter asked for clarification that natural
gas processing facilities are not subject to rules for oil facilities.
Response to comments. Flowlines and gathering lines. Wells and
separators. EPA disagrees that flowlines and gathering lines, as well
as wells and separators, should be excluded from the definition. These
structures or equipment are integral parts of production facilities and
should therefore be included in the definition. We also disagree with
the argument that because the installation of structures and equipment
to prevent discharges around gathering lines and flowlines may not be
practicable, EPA will be flooded with contingency plans. First of all,
secondary containment may be practicable. In Sec. 112.7(c), we list
sorbent materials, drainage systems, and other equipment as possible
forms of secondary containment systems. We realize that in many cases,
secondary containment may not be practicable. If secondary containment
is not practicable, you must provide in your SPCC Plan a contingency
plan following the provisions of part 109, and otherwise comply with
Sec. 112.7(d). We have deleted the proposed 1993 provision that would
have required you to provide contingency plans as a matter of course to
the Regional Administrator. Therefore, you will rarely have to submit a
contingency plan to EPA. The contingency plan you do provide in your
SPCC Plan when secondary containment is not practicable for flowlines
and gathering lines should rely on strong maintenance, corrosion
protection, testing, recordkeeping, and inspection procedures to
prevent and quickly detect discharges from such lines. It should also
provide for the quick availability of response equipment.
DOT definition. We changed the proposed definition to be more
consistent with the DOT definition, found at 49 CFR 195.2, in response
to a commenter who urged consistency in EPA and DOT definitions. We
added the uses of the piping and equipment detailed in DOT rule to our
proposal, for example, ``production, extraction, recovery, lifting,
stabilization, separation, or treating'' of oil. The terms ``separation
equipment,'' used in the proposed definition of ``oil production
facilities (onshore)'', and ``workover equipment,'' used in the
proposed definition of ``oil drilling, production, or workover
facilities (offshore)'', were combined into a generic ``equipment.''
However, we also modified the proposed definition to reflect EPA
jurisdiction. We added the word ``structure,'' which was not in the DOT
definition, to cover necessary parts of a production facility. We also
added examples of types of piping, structures, and equipment. These
examples are not an exclusive list of the possible piping, structures,
or equipment covered under the definition. The new definition
encompasses all those facilities that would have been covered under
both former proposed definitions. As we proposed in 1991, and as in the
current rule, we have retained geographic and ownership limitations.
Single oil or gas field, single operator. ``A single geographical
oil or gas field'' may consist of one or more natural formations
containing oil. The determination of its boundaries is area-specific.
Such formation may underlie one or many facilities, regardless of
whether any natural or man-made physical geographical barriers on the
surface intervene such as a mountain range, river, or road. We disagree
that the term ``a single operator'' is confusing. An ``owner'' or
``operator'' is defined in Sec. 112.2 as any ``person owning or
operating an onshore facility or an offshore facility, and in the case
of any abandoned offshore facility, the person who owned or operated or
maintained such facility immediately prior to abandonment.'' A
``person'' is not restricted to a single natural person. ``Person'' is
a defined term in the rule (at Sec. 112.2) which includes an
individual, firm, corporation, association, or partnership.
Nothing in the definition would preclude an owner or operator from
combining elements of a production facility into one SPCC Plan with an
identification of the wells to which that Plan applies.

[[Page 47079]]

Natural gas. Because natural gas is not oil, natural gas facilities
that do not store or use oil are not covered by this rule. However, you
should note, that drip or condensate from natural gas production is an
oil. The storage of such drip or condensate must be included in the
calculation of oil stored or used at the facility.
Editorial changes and clarifications. One commenter suggested that
the definitions proposed were ambiguous because of the use of the words
``may include.'' We have eliminated the potential ambiguity caused by
the words ``may include'' by revising the definition with the words
``Production facility means.''
Regional Administrator
Background. In 1991, we proposed a definition of ``Regional
Administrator'' that was substantively unchanged from the current rule.
In the final rule, we have deleted language concerning the ``designee''
of the EPA Regional Administrator because the language is unnecessary.
Since the Regional Administrator has authority to delegate most
functions, the term ``designee'' is almost always implied. When he does
not have authority to delegate a function, the term ``designee'' is
likewise unnecessary. We received no substantive comments.
Repair
Background. In 1993, we proposed a definition of ``repair'' in
conjunction with the proposed rule for brittle fracture evaluation.
Comments. Ordinary maintenance. Two commenters asked for
clarification of the term ``repair,'' so that it would exclude ordinary
day-to-day maintenance activities which are conducted to maintain the
functional integrity of the tank. Another asked that the infinitive
``to maintain'' be deleted from the definition of repair so that
evaluation for brittle fracture would not be required after ordinary,
day-to-day maintenance.
Related equipment. Another commenter suggested that we conform the
proposed definition of ``repair'' with the API 653 definition,
specifically deleting the phase ``or related equipment.''
Response to comments. Ordinary maintenance. Some repairs in the
nature of ordinary maintenance that do not weaken the integrity of the
container might not necessitate brittle fracture evaluation. ``Repair''
means any work necessary to maintain or restore a container or related
equipment to a condition suitable for safe operation. Typical examples
of a repair that would trigger a brittle fracture evaluation include
the removal and replacement of material (such as roof, shell, or bottom
material, including weld metal) to maintain tank integrity; the re-
leveling or jacking of a tank shell, bottom, or roof; the addition of
reinforcing plates to existing shell penetrations; and the repair of
flaws, such as tears or gouges, by grinding or gouging followed by
welding. The definition of ``repair'' also includes reconstruction.
Reconstruction means the work necessary to reassemble a container that
has been dismantled and relocated to a new site. We have amended the
definition to reflect that ordinary, day-to-day maintenance that does
not weaken the integrity of the container will not trigger the brittle
fracture evaluation requirement.
Related equipment. We agree with the commenter and will not include
the term ``or related equipment'' in the definition to conform with API
Standard 653, which does not include repairs of related equipment as a
criterion for a brittle fracture evaluation.
Industry standards. Industry standards that may be helpful in
understanding the definition of repair (and reconstruction) include API
Standard 653, ``Tank Inspection, Repair, Alteration, and
Reconstruction.''
Editorial changes and clarifications. ``Tank'' becomes
``container.''
Spill Event
Background. In 1991, we proposed to modify the definition of
``spill event'' to correspond to the changes described in the
applicability section of this rule (i.e., Sec. 112.1(b)) relating to
the expanded scope of CWA jurisdiction.
Comments. One commenter opposed the definition without explaining
why. Several commenters argued that the definition should apply only to
discharges to navigable waters.
Response to comments. We have withdrawn the proposed definition of
``spill event,'' and have also deleted the term from the rule. We take
this action because the term is not mentioned in the CWA and is
unnecessary. The term is unnecessary because the word ``discharge'' is
adequate. ``Discharge'' is the term used in the CWA. A discharge as
described in Sec. 112.1(b) is the same as a spill event. As to the
comment on EPA jurisdiction, we disagree that our jurisdiction should
apply only to discharges to navigable waters because the CWA
establishes our jurisdiction beyond navigable waters (see the
discussion under Sec. 112.1(b)), and we have the responsibility to
protect the environment within the scope of our statutory jurisdiction.
Spill Prevention, Control, and Countermeasure Plan, SPCC Plan or Plan
Background. In 1997, we reproposed the definition of ``SPCC Plan''
and withdrew the 1991 proposal. The 1997 proposal would broaden the
acceptable formats of SPCC Plans, eliminating the requirement that the
Plan meet the format or sequence formerly specified in the rule.
Comments. Editorial changes and clarifications. One commenter
suggested that the last two sentences in the proposed definition should
be deleted because they contain substantive requirements, and relocated
to Sec. 112.7. Another commenter thought that the SPCC definition
should be revised to say that the Plan documents spill prevention
measures and not compliance with the rule, because compliance is
determined by comparing the contents of the Plan with the rules.
Response Plan. A few commenters opposed the definition on the
theory that it constitutes a type of response plan. Those commenters
argued that the thrust of the definition should be on spill
containment, not paperwork.
Acceptable formats. Many commenters favored the proposal. Several
suggested various formats that might qualify such as Integrated
Contingency Plans, State Plans, Electrical Equipment Area Response
Plans, Stormwater Pollution Prevention Plans, and others. One commenter
thought that EPA should specify acceptable formats. Several commenters
suggested that various formats such as Integrated Contingency Plans and
State Plans are presumptively acceptable.
Response to comments. Response Plan. We disagree that the proposed
definition constitutes a ``response plan.'' The definition results in
no substantive changes in response planning requirements.
Acceptable formats. We agree that any equivalent prevention plan
acceptable to the Regional Administrator qualifies as an SPCC Plan as
long as it meets all Federal requirements (including certification by a
Professional Engineer), and is cross-referenced from the requirement in
part 112 to the page of the equivalent plan. We do not agree that we
should specify acceptable formats. We will give examples of those
acceptable formats, but those examples are not meant to be exhaustive.
Examples of an ``equivalent prevention plan'' might be, for
instance, an Integrated Contingency Plan (ICP), a State plan, a Best
Management Practice Plan (which is a component of the Stormwater
Pollution Prevention Plan),

[[Page 47080]]

or other plan that meets all the requirements of part 112 and is
supplemented by a cross-reference section identifying the location of
elements in part 112 to the equivalent requirement in the other plan.
We repeat EPA's commitment to the ICP format, and encourage owners or
operators to use it. If the equivalent prevention plan has no
requirement that a Professional Engineer certify it, it will be
necessary to secure proper certification from the Professional Engineer
to comply with the SPCC rule.
An equivalent Plan might be a Plan following the SPCC sequence in
effect before this final rule became effective. If you choose to use
the sequence of the rule currently in effect, you may do so, but you
must cross-reference the requirements in the revised rule to the
sequence used in your Plan. We have provided a table in section IV.A of
today's preamble to help you cross-reference the requirements more
easily. If the only change you make is the addition of cross-
referencing, you need not have a Professional Engineer certify that
change.
Another example of an equivalent plan might include a multi-
facility plan for operating equipment. This type of plan is intended
for electrical utility transmission systems, electrical cable systems,
and similar facilities which might aggregate equipment located in
diverse areas into one plan. Examples of operating equipment containing
oil include electrical equipment such as substations, transformers,
capacitors, buried cable equipment, and oil circuit breakers.
A general, multi-facility plan for operational equipment used in
various manufacturing processes containing over the threshold amount of
oil might also be acceptable as an SPCC Plan. Examples of operating
equipment used in manufacturing that contains oil include small lube
oil systems, fat traps, hydraulic power presses, hydraulic pumps,
injection molding machines, auto boosters, certain metalworking
machinery and associated fluid transfer systems, and oil based heaters.
Whenever you add or remove operating equipment in your Plan that
materially affects the potential for a discharge as described in
Sec. 112.1(b), you must amend your Plan. 40 CFR 112.5(a).
Multi-facility plans would include all elements required for
individual plans. Site-specific information would be required for all
equipment included in each plan. However, the site-specific information
might be maintained in a separate location, such as a central office,
or an electronic data base, as long as such information was immediately
accessible to responders and inspectors. If you keep the information in
an electronic data base, you must also keep a paper or other backup
that is immediately accessible for emergency response purposes, or for
EPA inspectors, in case the computer is not functioning. Where you
place that site-specific information would be a question of allowable
formatting, as is the question of what is an ``equivalent'' plan; an
issue subject to RA discretion.
Still another example of an equivalent plan might be a Best
Management Practice Plan (BMP) plan prepared under an NPDES permit, if
the plan provides protections equivalent to SPCC Plans. Not all BMP
plans will qualify, as some BMP plans might not provide equivalent
protection. NPDES permits without BMP plans would not qualify.
BMP plans are additional conditions which may supplement effluent
limitations in NPDES permits. Under section 402(a)(1) of the CWA, BMP
plans may be imposed when the Administrator determines that such
conditions are necessary to carry out the provisions of the Act. See 40
CFR 122.44(k). CWA section 304(e) authorizes EPA to promulgate BMP
plans as effluent limitations guidelines. NPDES rules provide for BMP
plans when: authorized under section 304(e) of the CWA for the control
of toxic pollutants and hazardous substances; numeric limitations are
infeasible; or, the practices are reasonably necessary to achieve
effluent limitations and standards to carry out the purposes of the
CWA.
Any format that contains all the required elements of an SPCC Plan
and provides equivalent environmental protection would be presumptively
acceptable. The final decision on what is an ``equivalent'' plan,
however, would be at the discretion of the Regional Administrator.
``Equivalence'' would not mean that an alternate format would be the
mirror image of an SPCC Plan, but it would have to contain all the
required elements of an SPCC Plan. Required elements include, but are
not limited to, provisions for a written plan, secondary containment or
a contingency plan following 40 CFR part 109, equivalent inspections
and tests, security, personnel training, and certification of the plan
by a Professional Engineer. Acceptance of an equivalent plan does not,
however, imply any type of approval or submission process. As before,
SPCC Plans are generally not submitted to the Regional Administrator.
The Regional Administrator could accept an equivalent prevention plan
if it: (1) meets all regulatory requirements in the SPCC rule; and (2)
is supplemented by a cross-reference section identifying requirements
listed in part 112 to the equivalent requirements in the other
prevention plan. Partial use of other equivalent prevention plans is
also acceptable, if the plan is supplemented by elements that meet the
remainder of the EPA requirements contained in part 112.
Written Plans. We agree that a ``written'' Plan might also include
texts, graphs, charts, maps, photos, and tables, on whatever media,
including floppy disk, CD, hard drive, and tape storage, that allows
the document to be easily accessed, comprehended, distributed, viewed,
updated, and printed. Whatever medium you use, however, must be readily
accessible to response personnel in an emergency. If it is produced in
a medium that is not readily accessible in an emergency, it must be
also available in a medium that is. For example, a Plan might be
electronically produced, but computers fail and may not be operable in
an emergency. For an electronic Plan or Plan produced in some other
medium, therefore, a backup copy must be readily available on paper. At
least one version of the Plan should be written in English so that it
will be readily understood by an EPA inspector.
Editorial changes and clarifications. The word ``guidelines'' was
replaced with ``requirements,'' as proposed in 1991. EPA agrees with
the relocation of the last two sentences of the definition. Therefore,
we have transferred those sentences to the introduction of Sec. 112.7,
in order to maintain the principle that definitions should not contain
substantive requirements. We have also changed the last sentence which
was proposed as ``* * * provide adequate countermeasures to an oil
spill'' to read ``* * * provide adequate countermeasures to a
discharge.'' We agree that the Plan does not document compliance, but
merely spill prevention measures and have deleted the sentence noting
that the Plan documents compliance with the rules. Compliance is
determined by comparing the contents of the Plan with the regulations.
Storage capacity
Background. In 1991, we proposed a definition of ``storage
capacity'' to clarify that it includes the total capacity of a
container capable of storing oil or oil mixtures. We explained that
because the percentage of oil in a mixture is determined by the
operator and can be changed at will, the total capacity of a container
is considered in determining applicability under this part, regardless
of whether the container is filled with

[[Page 47081]]

oil or a mixture of oil and another substance, as long as a discharge
from such container could violate the harmful quantity standards in 40
CFR part 110.
Comments. In general. One commenter strongly favored the proposal.
Standard of measurement. One commenter asserted that volume was the
proper measure of storage capacity, not total capacity. Another
commenter suggested a ``working capacity'' standard. Other commenters
argued that the definition should apply only to containers meeting the
definition of a bulk storage tank, and that only the oil storage
capacity of the container be considered. Similarly, a commenter
asserted that the ``design capacity'' of a container is what should
count as storage capacity because electrical equipment or other
interior components might reduce the volume of oil capable of being
stored.
Exclusions--small containers; waste treatment facilities, secondary
containment containers. Small containers. Most commenters were opposed
to the proposed definition because they either wanted an exclusion for
small containers or because they wanted an exclusion for containers
containing de minimis amounts of oil. These commenters argued that
small containers would not present a significant threat of discharge.
Waste treatment facilities. The rationale of commenters supporting
an exemption for waste treatment containers was that some containers
had non-usable space at the top of the container; also some containers
contain only trace amounts of oil. Therefore, for example, storage
tanks used to store or treat wastewaters are likely to have to be
considered when determining storage capacity since many wastewaters
have incidental oil content prior to treatment. They also argued that
the definition would subject publicly owned treatment works (POTWs) to
the rule because tanks used to control stormwater surges might contain
small amounts of oil from runoff from parking lots and city streets.
Secondary containment containers. Some commenters argued that the
definition would apply to tanks used to provide secondary containment
when determining the storage capacity of a facility.
Response to comments. Standard of measurement. In most instances
the shell capacity of a container will define its storage capacity. The
shell capacity (or nominal or gross capacity) is the amount of oil that
a container is designed to hold. If a certain portion of a container is
incapable of storing oil because of its integral design, for example
electrical equipment or other interior component might take up space,
then the shell capacity of the container is reduced to the volume the
container might hold. When the integral design of a container has been
altered by actions such as drilling a hole in the side of the container
so that it cannot hold oil above that point, shell capacity remains the
measure of storage capacity because such alteration can be altered
again at will to restore the former storage capacity. When the
alteration is an action such as the installation of a double bottom or
new floor to the container, the integral design of the container has
changed, and may result in a reduction in shell capacity. We disagree
that operating volume should be the measurement, because the operating
volume of a tank can be changed at will to below its shell capacity.
The keys to the definition are the availability of the container
for drilling, producing, gathering, storing, processing, refining,
transferring, distributing, using, or consuming oil, and whether it is
available for one of those uses or whether it is permanently closed.
Containers available for one of the above described uses count towards
storage capacity, those not used for these activities do not. Types of
containers counted as storage capacity would include some flow-through
separators, tanks used for ``emergency'' storage, transformers, and
other oil-filled equipment.
Exclusions--small containers; waste treatment facilities. Small
containers. This definition is applicable to both large and small
storage and use capacity. Owners or operators of small facilities above
the regulatory threshold are subject to the rule, and need to know how
to calculate their storage or use capacity.
However, in the applicability section of the rule, we have excluded
containers of less than 55 gallons from the scope of the SPCC rule,
addressing the comments of those commenters who argued for a minimum
container size. See Sec. 112.1(d)(5). A container above that size that
is available for use or storage containing even small volumes of oil
must be counted in storage capacity.
Waste treatment facilities. We agree with the commenter that a
facility or part thereof (except at an oil production, oil recovery, or
oil recycling facility) used exclusively for wastewater treatment
system and not to meet any part 112 requirement should not be
considered storage capacity because wastewater treatment is neither use
nor storage of oil. Therefore, we have exempted such facilities or
parts thereof from the rule. However, note that certain parts of such
facilities may continue to be subject to the rule. See the discussion
under Sec. 112.1(d)(6).
Secondary containment containers. Containers which are used for
secondary containment and not storage or use, are not counted as
storage capacity.
Editorial changes and clarifications. We use the word ``container''
instead of ``tank or container,'' because a tank is a type of
container. We have clarified the definition to provide that the storage
capacity of a container is the volume of oil that the container could
hold, and have therefore substituted the words ``shell capacity'' of
the container for ``total capacity.'' This is merely a clarification,
and not a substantive change. We also deleted the words ``for purposes
of determining applicability of this part,'' because the words were
unnecessary. We also deleted the last phrase of the proposed
definition, ``whether the tank or container is filled with oil or a
mixture of oil and other substances,'' because the contents of the
container do not affect the definition of its shell capacity.
Transportation-related and non-transportation-related
Background. In 1991, we reproposed the current definition of
``transportation-related and non-transportation-related.'' We received
no comments on the proposal. Therefore, we have promulgated the
definition as proposed.
United States
Background. In 1991, we proposed to revise the definition of
``United States'' to conform to the definition enacted in the 1978
amendments to the CWA. We received no comments on this proposal.
Therefore, we have promulgated the definition as proposed.
Vessel
Background. In 1991, we reproposed the current definition of
vessel. We received no comments on this proposal. Therefore, we have
promulgated the definition as proposed. We note that a barge or other
watercraft that has been determined by the Coast Guard to be
permanently moored to the shore, and used for storage, is no longer
being used as a vessel, and does not fit within the definition of
vessel. Rather, it becomes a bulk storage container counted as storage
capacity. The same concept is found in the rules for mobile facilities
at Sec. 112.3(c), which provides that SPCC Plans apply to mobile
facilities only

[[Page 47082]]

``while the facility is in a fixed (non-transportation) operating
mode.''
Wetlands
Background. In 1991, we proposed a definition of ``wetlands'' to
define the term as used in the definition of ``navigable waters.'' The
definition of wetlands conforms to the definition in 40 CFR part 110
relating to the discharge of oil.
Comments. Several commenters opposed the definition because they
believe that it includes a series of examples which may or may not be
correct. They also alleged that the definition fails to implement the
1987 U.S. Army Corps of Engineers Wetlands Manual or the documents
implementing that Manual. Another commenter asked for EPA clarification
of what is a wetland, given the ``vague and arguable notion of a
wetland.''
Response to comments. The examples listed in the definition are
intended to help the reader with guidelines to identify wetlands. While
the examples generally represent types of wetlands, they are not
intended to be a categorical listing of such wetlands. There may be
examples listed that under some circumstances do not constitute
wetlands. We believe that the 1987 Wetlands Manual is a useful source
material for wetlands guidance. It would be impossible to specify in a
rule every type of situation where wetlands occur. The examples listed
in the definition are not exclusive, but provide help in clarifying
what may be a wetland.

Section 112.3 Introduction

Background. We have added an introduction to Sec. 112.3 as an
editorial device to simplify the language in the paragraphs of this
section.

Section 112.3(a)--Time Line for Preparation and Implementation of Plans
for Existing Facilities

Background. In 1991, we proposed to require owners or operators of
onshore and offshore facilities in operation 60 days after the
effective date of this final rule to ``maintain a prepared and fully
implemented facility SPCC Plan. . . . '' We proposed giving these
owners or operators 60 days from the date the final rule was published
to revise their existing Plans and implement the revisions. The
proposed rule also reflected the expanded geographic scope of the rule
provided by CWA amendments.
Comments. Time period to prepare and implement a Plan. A number of
commenters favored the proposal. Many more favored a ``phase-in''
period, or a longer period within which to comply. Commenters suggested
compliance periods ranging from 60 days to 7 years. Many commenters
clustered around the suggestion that a 6 month phase-in period be
allowed. Many others suggested compliance by the next three-year
review, as required by Sec. 112.5(b) at that time.
Extensions. Several commenters asked that extensions of time to
prepare and implement Plans be automatic if Plans must be in effect
prior to the commencement of operations. Another suggested that
extension requests be considered ``routine.''
Acquired facilities. One commenter asked how we would treat
acquired facilities, whether as new or continuing operation facilities.
Start of operations. One commenter asked when operations start,
stating that is not always a clearly defined time. The commenter
suggested that instead of requiring a prepared and implemented Plan, we
should allow that a response team be in place.
Small facilities. One commenter asserted that the time line for
Plan preparation and implementation was unreasonable for small
facilities, and asked that facilities with under 10,000-gallon capacity
be allowed to operate while developing and implementing a Plan.
Response to comments. Time period to prepare and implement a Plan.
We have been persuaded by commenters that a longer phase-in period than
60 days is required for facilities currently in operation or about to
become operational within one year after the effective date of this
rule.
Facilities currently in operation. For a facility in operation on
the effective date of this rule, we changed the dates in the proposed
rule for preparation and implementation of plans from 60 days to a
maximum of one year to accord with the time frames in the current rule.
The owner or operator of a facility in operation on the effective date
of this rule will have 6 months to amend his Plan and must fully
implement any amendment as soon as possible, but within one year of the
effective date of the rule at the latest. The owner or operator of a
facility which has had a discharge as described in Sec. 112.1(b), or
reasonably could be expected to have one, already has an obligation to
prepare and implement a Plan.
For example, an owner or operator whose facility became operational
four years before the effective date of this rule is the owner or
operator of a facility currently in operation on the effective date of
this rule. He is therefore subject to current Sec. 112.3(b), and should
have prepared his Plan no later than three and one half years before
the effective date of this rule, and fully implemented it no later than
three years before the effective date of this rule. Assuming that he
still has not prepared a Plan on the effective date of the rule, he
must prepare and fully implement a Plan immediately that meets the
requirements of the revised rule. He is subject to penalties for
violation of current Sec. 112.3(b) until he does so, and the penalties
would accrue from the time the original deadlines passed before the
effective date of this rule. The owner or operator of a facility which
became operational four years before the effective date of the rule,
and who prepared and fully implemented his Plan in compliance with
current Sec. 112.3(b), must amend his Plan within 6 months of the
effective date of this rule to meet the requirements of the revised
rule, and fully implement the amended Plan as soon as possible, but no
later than one year after the effective date of the rule.
An owner or operator whose facility became operational 7 months
before the effective date of the rule is an owner or operator of a
facility currently in operation and is therefore subject to current
Sec. 112.3(b). He should have prepared his Plan one month before the
effective date of this rule. If he did, he will have 6 months from the
effective date of this rule to amend that Plan to meet the requirements
of the revised rule, and must fully implement the amended Plan as soon
as possible, but within one year of the effective date of this rule. If
he has not prepared a Plan by the effective date of the current rule as
required, then he must prepare and fully implement a Plan immediately
that meets the requirements of the revised rule. He is subject to
penalties for violation of current Sec. 112.3(b) until he does so.
An owner or operator whose facility became operational 4 months
before the effective date of this rule is also an owner or operator of
a facility currently in operation on the effective date of this rule
and therefore subject to the current rule. However, in this case, the
6-month deadline to prepare a Plan under the current Sec. 112.3(b) has
not yet passed. Therefore, the owner or operator is subject to the Plan
preparation and implementation deadlines in Sec. 112.3(a) of the
revised rule. He now has 6 months from the effective date of this rule
to prepare a Plan that meets the requirements of this rule. If he had
already prepared a Plan under current Sec. 112.3(b), he has 6 months
from the effective date of this rule to amend that Plan. In either
case, he must fully implement the Plan (or amended Plan)

[[Page 47083]]

as soon as possible after the 6-month Plan preparation deadline of this
rule, but no later than one year after the effective date of this rule.
The owner or operator of a facility in operation on the effective
date of this rule who is required to have prepared or implemented an
SPCC Plan, but has not, remains subject to penalties for violation of
current SPCC regulations. Such owner or operator is consequently
subject to civil penalties for a violation of current Sec. 112.3 if the
time has expired for preparation or implementation of his Plan.
Facilities becoming operational within one year after the effective
date of the rule August 13, 2003. If you begin operations after the
effective date of the rule through one year after the effective date of
this rule August 16, 2002, you will have until one year from the
effective date of this rule to prepare and implement your Plan. In
other words, if the rule becomes effective on January 1, and you begin
operations on January 2, you must prepare and implement your Plan by
January 1 of the following year. If you begin operations on June 30,
you still have until January 1 of the following year to prepare and
implement your plan. If you begin operations on December 31, you still
have until January 1 (the next day) of the following year to prepare
and implement your Plan. The rationale for the time frame in the rule
is that you will have had notice of the Plan preparation and
implementation requirements from the publication date of the rule, a
period of 30 days plus one year. In addition, you would already have
had notice of the general requirement for preparation of an SPCC Plan
from the current part 112 regulations. Therefore, the owner or operator
of a facility planning to become operational within one year after the
effective date of this rule should start working on his Plan in time to
have it fully implemented within the year.
New facilities. The owner or operator of a facility that becomes
operational more than one year after the effective date of this rule
must prepare and implement a Plan before beginning operations.
A year phase-in period is in line with legitimate business and
investment expectations. It allows a reasonable period of time for
facilities to undertake necessary constructions, purchases of
equipment, or to effect changes of procedures. And again, the general
requirement for preparation of a Plan already exists in part 112, so
new facilities should already have been aware of the need for a Plan.
Extensions. While we have extended the time period for compliance,
we understand that some facilities may still need extensions of time to
comply. Extensions may be necessary to secure necessary manpower or
equipment, or to construct necessary structures. If you are an owner or
operator and an extension is necessary, you may seek one under
Sec. 112.3(f). If no Plan amendments are necessary after you review
today's rule, you must maintain your current Plan and cross-reference
its elements to the redesignated requirements.
Acquired facilities. For SPCC purposes, we consider acquired
facilities as facilities that are already operating rather than new
facilities because these facilities must already have SPCC Plans if
they exceed applicable thresholds.
Start of operations. Start of operations is when you begin to store
or use oil at a facility. Often this may be a testing or calibration
period prior to start up of normal operations. With the extended time
line we have provided, no response team is required, but such a team
may be a good engineering practice. At a minimum, you must prepare and
implement a Plan as required by this rule.
Small facilities. With the extended time line we have provided, all
facilities, large or small, have adequate notice and time in which to
prepare and implement a Plan.
Editorial changes and clarifications. We deleted the first sentence
of the proposed rule from the final rule because it is unnecessary. It
is unnecessary because the obligation to have prepared a Plan is
incurred under current section Sec. 112.3(b) for the owner or operator
of a facility in operation before the effective date of this rule. For
the owner or operator of a facility that becomes operational on or
after the effective date of this rule, revised Sec. 112.3 provides the
time period within which he must prepare and implement a Plan. The
deleted sentence read, ``Owners or operators of onshore facilities that
become operational after September 16, 2002, and could be reasonably be
expected to discharge oil as described in Sec. 112.1(b)(1) of this
part, shall prepare a facility SPCC Plan in accordance with Sec. 112.7,
and in accordance with any of the following sections that apply to the
facility: Secs. 112.8, 112.9, 112.10, and 112.11.''

Section 112.3(b)--Time Line for Preparation and Implementation of Plans
for New Facilities

Background. In 1991, we proposed that new facilities contemplating
the start of operations be required to prepare and fully implement
Plans before beginning operations. Our rationale was that our
experience showed that many types of failures occur during or shortly
following facility startup and virtually all prevention, containment,
and countermeasure practices are a part of the facility design or
construction.
Comments. Many commenters suggested various phase-in periods, as
discussed above.
Response to comments. We believe that our original rationale is
still correct. Experience with the implementation of this regulation
shows that many types of failures occur during or shortly following
startup and that virtually all prevention, containment, and
countermeasure practices are part of the facility design or
construction. Therefore, it can be beneficial to the environment and
carries out the intent of the statute if a facility Plan is prepared
and implemented before startup. However, to provide sufficient notice
to new facilities that a Plan must be prepared and implemented before
beginning operations, we have delayed implementation of this section
until one year after the effective date this rule. If you begin
operations within one year of the effective date of this rule, you must
comply with the requirements in Sec. 112.3(a). However, if you begin
operations more than one year after the effective date of this rule,
your facility would be ``new'' and you would have to prepare and
implement an SPCC Plan before you begin operations. If you need an
extension to comply, you may seek one under Sec. 112.3(f).
Editorial changes and clarifications. The phrase ``* * * could
reasonably be expected to discharge oil, as described in Sec. 112.1(b)
of this part* * *'' becomes ``could reasonably be expected to have a
discharge as described in Sec. 112.1(b).''

Section 112.3(c)--Time Line for Preparation and Implementation of Plans
for Mobile Facilities

Background. In 1991, we proposed that owners or operators of
onshore and offshore mobile facilities be required to have a prepared
and implemented Plan before beginning operations. Since existing mobile
facilities are a subset of existing facilities, we generally assume
that these facilities already have a Plan in place, as the rule now
requires. 40 CFR 112.3(c). Both new and existing mobile facilities
would therefore have to comply with the rule requiring a fully prepared
and implemented Plan before beginning operations.
Comments. In general. One commenter believed that requiring Plans

[[Page 47084]]

for mobile facilities is unworkable because their physical surroundings
are subject to change. Another commenter supported our proposal to
allow general Plans for mobile facilities.
Multi-well drilling programs. One commenter asked if Plan updates
would be required in a field where a multi-well drilling program is
underway. The commenter suggested that updates should be required only
after the drilling program is complete.
Response to comments. In general. We agree that the physical
surroundings of mobile facilities are subject to change. However, we
disagree that changing physical surroundings should exempt mobile
facilities from the rule. Mobile facilities may have ``general'' Plans
and need not prepare a new Plan each time the facility is moved to a
new site. When a mobile facility is moved, it must be located and
installed using the spill prevention practices outlined in the Plan for
the facility.
Mobile facilities currently in operation are assumed to have
implemented Plans already, because they are currently legally required
to do so. Both new and existing mobile facilities must have Plans
prepared and fully implemented before operations may begin. If after
your review of today's rule, you decide that no amendment to your Plan
is necessary, except for cross-referencing, you may continue to operate
under your existing Plan, but you must promptly cross-reference the
provisions in the Plan to the new format. Extension requests under
Sec. 112.3(f) are also available for mobile facilities under the proper
conditions.
Multi-well drilling programs. It is not necessary to amend the Plan
every time you drill a well in a field containing multiple wells. A
general Plan will suffice.
Editorial changes and clarifications. We deleted the phrase ``using
good engineering practice,'' in the third sentence of the paragraph
because good engineering practice is required of all Plans. See the
introduction to Sec. 112.7. Therefore, the phrase was unnecessary.

Section 112.3(d)--Certification by Professional Engineers

Background. The current rule only requires that the Professional
Engineer (PE), having examined the facility and being familiar with the
provisions of part 112, attest by means of his certification that the
Plan has been prepared in accordance with good engineering practices.
In 1991, we proposed to add specificity to the meaning of the
certification requirements for a PE. We proposed that the PE attest
that he is familiar with the requirements of part 112, that he has
visited the facility, that the Plan has been prepared in accordance
with good engineering practice and the requirements of part 112, that
required testing has been completed, and that the Plan is adequate for
the facility.
Comments. Certification requirement. Most commenters supported a
certification requirement for PEs. Some opposed it on grounds that if
all the components of the Plan were specified by rule, then
certification is unnecessary. One U.S. territory, U.S. Samoa, noted
that it doesn't register PEs, arguably making compliance with the rule
difficult for owners or operators of facilities in Samoa.
Other commenters thought a PE certification requirement was
unnecessarily burdensome and costly for small facilities, but did not
provide cost estimates. One commenter asserted that PE certification
should not be required for small facilities, due mainly to the
prohibitive cost. The commenter also maintained that most small
facilities have tanks that are required by State or local law to have
the Underwriters Laboratory Seal of Approval and to have submitted a
detailed plan for review and approval to the fire marshal prior to
installation.
Certification by other environmental professionals. Several
commenters suggested that certification could be effected by another
environmental professional, rather than a PE, or by another
environmental professional with PE oversight.
Good engineering practice. One commenter noted that EPA specified
in the 1991 preamble that the application of good engineering practice
will require that appropriate provisions of applicable codes,
standards, and regulations be incorporated into the SPCC Plan for a
particular facility. 56 FR 54617-18. The commenter added, however, that
we do not define ``good engineering practice'' for this program, and
urged EPA to specify in more detail as to its understanding of the
term.
Testing. Some commenters wrote that it would be better for the PE
to enumerate all the inspections and tests that have been completed,
plus those that should be completed before the facility commences
operations and those that should be undertaken periodically after it
commences operations. A few commenters objected to the proposed
requirement that the PE attest that required testing has been
completed, suggesting instead that the operator is responsible for
completion of testing. Another commenter suggested that the PE be
allowed to attest to the presence of those written procedures which
require testing.
Non-technical changes. Most supported the idea that non-technical
changes to a Plan (for example, the emergency contact list, phone
numbers, or names) need not have PE certification.
Time limit for PE certification. One commenter suggested a time
limit of three years or less on PE certification, suggesting that the
PE should be required to reinspect the premises periodically,
preferably annually, to ascertain that the Plan continues to be
implemented.
PE costs. Some commenters argued that requiring an independent or
outside PE for Plan certification would be extremely expensive for
facilities located in remote areas. These commenters were principally
concerned that we did not fully account for the cost to a facility
owner or operator for a PE to visit each facility before certifying a
Plan. Requiring the use of an independent or outside PE could be
burdensome to facility owners or operators.
Response to Comments. Certification requirement. PE certification
of all facilities, both large and small, is necessary because a
discharge as described in Sec. 112.1(b) from any size facility may be
harmful, and PE review and certification of a Plan may help prevent
that discharge. We disagree that PE certification is prohibitively
costly for small facilities. A Plan certified by a PE may well save the
owner or operator money due to improved facility operations and
decreased likelihood of discharge, thus averting potentially costly
cleanups. Because a Plan for a smaller facility is likely to be less
complicated than a Plan for a larger facility, PE certification costs
should likewise be lower for a smaller facility. In our Information
Collection Request, estimated total costs for a new facility to prepare
and begin implementation of a Plan, including PE certification costs,
are $2,201 for a small facility, $2,164 for a medium facility, and
$2,540 for a large facility. This cost is incurred only in the year
that the facility first becomes subject to the rule. This one-time cost
incurred by a small facility is less than 1.5 percent of the average
annual revenue for small facilities in all industry categories. The
cost for the PE certification alone would represent even less than
that. As shown in Chapter 5 of the Economic Analysis for this
rulemaking, the average annual revenue for the smallest regulated
facilities (under the current rule) ranges from $150,000 to $6,833,000,
depending on the industry category. For example,

[[Page 47085]]

farms with annual revenue between $100,000 and $249,999 have an average
annual revenue per farm of $161,430, and $2,201 (the one-time cost to
prepare and implement a Plan) represents only 1.36 percent of that
annual revenue. Of course, under the revised rule many of these small
facilities will not be regulated by the SPCC program at all.
A PE's certification of a Plan means that the PE is certifying that
the facility's equipment, design, construction, and maintenance
procedures used to implement the Plan are in accordance with good
engineering practices. And this is important because good engineering
practices are likely to prevent discharges. PE certification, to be
effective for SPCC purposes, must be completed in accordance with the
law of the State in which the PE is working. For example, some States
require a PE to apply his seal to effectuate a certification. Others do
not.
We also disagree that small facilities need not have PE
certification for SPCC Plans when the tanks are certified by the
Underwriters Laboratory. A Plan consists of more than a certified tank.
It contains provisions for secondary containment, integrity testing,
and other measures to prevent discharges. Those provisions require PE
certification to ensure that they meet the requirements of the rule and
that the Plan is effective to prevent discharges.
Finally, by modifying the applicability provision in
Sec. 112.1(d)(2), we are today exempting many small facilities from the
requirement to prepare and implement a Plan at all, thus saving all
prospective PE costs.
In response to the commenter from Samoa, who noted that territory
does not register PEs, the rule would allow an SPCC facility there to
hire a PE licensed in some other State or U.S. territory.
Certification by other environmental professionals. Certification
by a PE, rather than by another environmental professional is necessary
to ensure the application of good engineering judgment. A PE must
obtain a Bachelor of Engineering degree from an accredited engineering
program, pass two comprehensive national examinations, and demonstrate
an acceptable level (usually four additional years) of engineering
experience. A licensed engineer is also required to practice
engineering solely within his areas of competence and to protect the
public health, safety, and welfare. All licensed PEs, no matter who
their employer, are required by State laws and codes of ethics to
discharge their engineering responsibilities accurately and honestly.
Furthermore, State governments have and do exercise the authority to
discipline licensed PEs who fail to comply with State laws and
requirements. Other environmental professionals may not have similar
expertise nor be held to similar standards as the licensed PE.
It is not always necessary for a PE to visit the facility.
Therefore, we have revised Sec. 112.3(d) to a allow site visit by
either the PE or his agent. Often it will be sufficient if the PE
reviews the work of other engineering professionals who have visited
the facility. Someone would have to visit the facility, but not
necessarily the PE. Nevertheless, in all cases the PE must ensure that
his certification represents an exercise of good engineering judgment.
If that requires a personal site visit, the PE must visit the facility
himself before certifying the Plan.
Good engineering practice. As we noted in the 1991 preamble (at 56
FR 54617-18), good engineering practice ``will require that appropriate
provisions of applicable codes, standards, and regulations be
incorporated into the SPCC Plan for a particular facility.'' We agree
with the commenter that the rule needs more specificity in this regard.
Therefore, we have amended Sec. 112.3(d)(1)(iii) to specifically
include consideration of applicable industry standards as an element of
the PE's attestation that the Plan has been prepared in accordance with
good engineering practice. We reiterate today, as we did in 1991, that
consideration of applicable industry standards is an essential element
of good engineering practice. Industry standards include industry
regulations, standards, codes, specifications, recommendations,
recommended practices, publications, bulletins, and other materials.
(See Sec. 112.7(a)(1) and (j).) The owner or operator must specifically
document any industry standard used in a Plan to comply with this
section. The documentation should include the name of the industry
standard, and the year or edition of that standard. However, as
discussed above, we have chosen not to incorporate specific industry
standards into the rule.
Testing. The proposed rule would have required the PE to certify
that required testing was completed. We have been persuaded by comments
that the requirement should be that procedures for inspections and
tests have been established, not necessarily completed, because the PE
is not normally present at time of completion. Nor do we believe it is
necessary to impose a requirement that the PE oversee all testing
because the PE only shares responsibility with the owner or operator
for establishing procedures, not for their implementation, which is the
sole responsibility of the owner or operator. However, the PE may
include in the Plan a schedule for testing, with specific time frames
for the completion of that testing. See also the discussion in today's
preamble (at section IV.D.3) on ``Completion of Testing.''
Non-technical changes. PE certification is not required for items
that do not require engineering judgment, such as telephone numbers;
names on lists; some, but not all, product changes (see the response to
comments of Sec. 112.5(a)); ownership changes; or, any other changes
not requiring engineering judgment.
Time limit for PE certification. We disagree that there should be a
time limit on PE certification because the rule ensures that the PE
reviews the Plan at appropriate times. Thus, current PE certifications
remain valid. But new certifications after the effective date of this
rule must include the required attestations. If you are an owner or
operator you must review your Plan at least every five years (under
revisions made in today's rule), and amend it if new technology is
warranted. Also, you must amend your Plan to conform with any
applicable rule requirements, or at any time you make any change in
facility design, construction, operation, or maintenance that
materially affects its potential for a discharge as described in
Sec. 112.1(b). All material amendments require PE certification.
Therefore, because a Plan will likely require one or more amendments
requiring PE review and certification, a time limit on PE
certifications is unnecessary. See Sec. 112.5(c).
Other PE issues. As to other PE issues, as noted above (see section
IV.D.2 of this preamble), the PE need not be independent of the
facility. Nor is there a requirement that he not have a financial
interest in it. We believe the professional integrity of a PE and the
professional oversight of boards licensing PEs are sufficient to
prevent any abuses.
It is not necessary that the PE be licensed in the same State as
the facility because the SPCC program is national in scope and
therefore State expertise is unnecessary. While States may prescribe
more stringent requirements than EPA, a PE may familiarize himself with
any particular requirements a State may impose and address them in the
Plan. See Sec. 112.7(j). Furthermore, violations of PE ethics may be
handled by the licensing board of the PE's state no matter where the
work is done.
EPA maintains that a site visit is necessary, but the visit may be
by either the PE or his agent, so long as a visit by

[[Page 47086]]

an agent is consistent with good engineering practice. A visit by the
PE's agent can generally be sufficient given that the PE will oversee
and be responsible for his agent's work.
PE costs. We note that we did not propose a requirement for an
independent PE, but requested comments on it. In the final rule, we
require either the PE or the PE's agent to visit and examine the
facility before the PE certifies the Plan. An agent might include an
engineering technician, technologist, graduate engineer, or other
qualified person to prepare preliminary reports, studies, and
evaluations after visiting the site. The PE, after reviewing the
agent's work, could then legitimately certify the Plan. Also, in the
final rule, we allow the PE to be an employee of the facility as well
as registered in a different State than the facility is located, in
order to approve a Plan. The rationale is that SPCC work is national in
scope and therefore State expertise is unnecessary.
Editorial changes and clarifications. ``Registered Professional
Engineer'' becomes ``licensed Professional Engineer.'' The first
sentence of the paragraph was proposed as, ``No SPCC Plan shall be
effective to satisfy the requirements of this part unless it has been
reviewed by a Registered Professional Engineer.'' We revised it to
read, ``A licensed Professional Engineer must review and certify a Plan
for it to be effective to satisfy the requirements of this part.'' This
revision is due to the fact that PEs are licensed by States.

Section 112.3(e)--Location and Availability of Plan

Background. In 1991, we proposed that the Plan be available at the
facility if the facility is normally manned at least four hours a day,
in lieu of the current requirement that the Plan be available if the
facility is manned eight hours a day. If the facility is not attended
at least four hours a day, the Plan would have to be available at the
nearest field office.
The rationale for the change is that some facilities interpreted
the eight hour requirement not to apply to a facility that is only
operating seven and one-half hours per day, with a half an hour
deducted for lunch. The availability of a Plan can be extremely useful
in preventing and mitigating discharges, therefore it must be available
most of the time at attended facilities.
Comments. Editorial changes and clarifications. Several commenters
questioned the meaning of ``normal working hours,'' asking whose hours
that meant, those of EPA or those of the facility. Several commenters
questioned the meaning of ``nearest field office.''
Plan availability. Several commenters favored the proposal. One
commenter suggested that we amend the rule to provide that the Plan be
available ``without advance notice,'' so that it would be fully
implemented at all times, not just when an inspection is impending. One
commenter thought that the Plan should always be located at the
facility, whether manned or not, perhaps protected by a laminated
cover, and at ``appropriate control centers.''
State and local agencies. Another commenter suggested that the Plan
be filed with the local fire department and LEPC (Local Emergency
Planning Committee) to facilitate public review. One State suggested
there be a Federal requirement that the Plan also be filed with the
State.
Response to comments. Nearest field office, normal working hours.
The term ``nearest field office'' in paragraph (e)(1) means the office
with operational responsibility for the facility, or the emergency
response center for the facility, because those locations ensure
accessibility for personnel who need to respond in case of a discharge.
The term ``normal working hours'' in paragraph (e)(2) refers to the
working hours of the facility or the field office, not EPA.
Plan availability. Today we have finalized the 1991 proposal that
the Plan must be available at the facility if it is normally attended
at least four hours per day, or at the nearest field office if it is
not so attended. A Plan must always be available without advance
notice, because an inspection might not be scheduled. You are not
required to locate a Plan at an unattended facility because of the
difficulty that might ensue when emergency personnel try to find the
Plan. However, you may keep a Plan at an unattended facility. If you do
not locate the Plan at the facility, you must locate it at the nearest
field office.
State and local agencies. You are not required to file or locate a
Plan with a State Emergency Response Commission or Local Emergency
Planning Committee or other State or local agency because the
distribution would unjustifiably increase the information collection
burden of the rule, and not all committees or agencies may want copies
of SPCC Plans. Should a State wish to require filing of a Federal SPCC
Plan with a State or local committee or agency, it may do so. No
Federal requirement is necessary.
Editorial changes and clarifications. In paragraph (e)(2), we
deleted the term ``or authorized representative'' after ``Regional
Administrator,'' because the Regional Administrator may delegate his
duties. Therefore, the term is unnecessary.

Section 112.3(f)--Extension of Time

Background. In 1991, we proposed to allow only new facilities to
apply for extensions of time to comply with the requirements of part
112. The current rule allows any facility to apply for an extension,
including existing fixed and mobile facilities. The rationale for
limiting extension requests to new facilities was that existing fixed
and mobile facilities have had since 1974 to comply with the rule.
Comments. Automatic extensions. Several commenters suggested that
we automatically grant extension requests if we are to require a Plan
to be in effect prior to commencement of operations.
Existing Plan requirements. Another commenter criticized the
proposed requirement to submit the existing Plan with each extension
request, because EPA's review of the Plan cannot practically be an
element of the extension granting process. Another commenter suggested
that the language in paragraph (f)(3) would be better if it said that
the existing Plan's provisions remain in effect until they are
superseded by changes proposed by the facility, because these words
better reflect the intention of the rule.
Amendments. Several commenters urged EPA to allow extensions for
preparation and implementation of Plan amendments.
Response to comments. Automatic extensions. Automatic extension
requests are not justifiable because we have extended the time within
which most facilities have to prepare and implement Plans. See
Sec. 112.3(a), (b), and (c). Also, under the revised rule, you may
request an extension for the preparation and implementation of any
Plan, or amendment to any Plan. See Sec. 112.3(f).
Existing Plan requirements. We have broadened the scope of
extension requests to any facility that can justify the request,
because for every type of facility there may be cases in which an
extension can be justified. Existing fixed and mobile facilities may
experience delays in construction or equipment delivery or may lack
qualified personnel, and these circumstances may be beyond the control
of, and without the fault of, the owner or operator. We also agree with
the commenter that the submission of the entire Plan as a matter of
course is unnecessary to evaluate each extension request. Therefore, we
have amended the rule to provide that the Regional Administrator may
request your Plan if he deems it appropriate. But we do not believe
that he will

[[Page 47087]]

always do so. It may be necessary under some circumstances. The
Regional Administrator also retains discretion to request the Plan
after on-site review, or after certain discharges. See Sec. 112.4(a)(9)
and (d). We disagree with the commenter's proposed rewrite of the owner
or operator's obligations while the request is pending because the
better policy is to require compliance with the rest of the rule that
is not affected by the extension request, rather than saying that the
existing Plan continues in effect.
Amendments. We have also added a provision for an extension of time
to prepare and implement an amendment to the Plan, as well as an entire
Plan. We believe that there may be cases in which an extension can be
justified for a Plan amendment because the same extenuating
circumstances may apply.
Editorial changes and clarifications. In paragraph (f)(3), ``letter
of request'' becomes ``written extension request.'' In the last
sentence of that paragraph, ``with respect to'' becomes ``related to.''

Section 112.4(a)--Reporting Certain Discharges to EPA

Background. In 1991, we proposed to require more information than
is currently required in the rule for reporting certain discharges. If
your facility discharged more than 1,000 gallons in a discharge as
described in Sec. 112.1(b), or discharged oil in quantities that may be
harmful in more than two discharges as described in Sec. 112.1(b)
within any consecutive twelve month period, you would have been
required to submit certain information to the Regional Administrator.
In 1993, we proposed a modification to Sec. 112.4(d)(1) which would
allow the Regional Administrator to require the submission of the
listed information in Sec. 112.4(a)(1) at any time, whether or not
there had been a discharge as described in Sec. 112.1(b).
In 1997, we proposed a reduction of the amount of information
currently required by Sec. 112.4(a). We proposed to eliminate the
following information, unless the Regional Administrator specifically
requested it: (1) The date and year of initial facility operation; (2)
maximum storage or handling capacity of the facility and normal daily
throughput; and, (3) a complete copy of the SPCC Plan with any
amendments.
Comments. In general. Most commenters favored the 1997 proposal.
Several commenters opposed the proposal.
Information submission at any time. One commenter argued that the
1993 proposal allowing EPA to require submission of the information
required in Sec. 112.4(a)(1) and to require Plan amendments at any time
is vague and does not provide adequate notice to the regulated
community.
Submission of entire Plan. One commenter thought that meaningful
review of the information submitted was impossible without the entire
Plan. Two commenters believed that EPA would always request the
information it proposed to eliminate.
Discharge threshold. Other commenters proposed a higher threshold
for having to report a discharge than is currently required by
Sec. 112.4(a). Those thresholds ranged from 25-55 gallons. One
commenter suggested that we relax the reporting requirement for very
minor releases of petroleum products. Another suggested that if the
discharge causes a sheen that dissipates within 24 hours, there should
be no obligation to report.
Maps, flow diagrams, and charts. Several commenters suggested that
we eliminate the requirement to submit maps, flow diagrams, and charts
because those documents ``add nothing useful to the inquiry.''
Off-site category. Another commenter suggested that we create an
``off-site'' category of spill reports for discharges reported by a
facility that are in a water body adjacent to the reporter's facility,
or for discharges that originate off-site, but migrate to the facility.
Calculation of time for discharge reports required by
Sec. 112.4(a). Several commenters suggested that we calculate the time
for the submission of discharge reports required by Sec. 112.4(a) on a
``block'' basis, rather than a ``rolling'' basis.

Response to Comments

Information submission at any time. We agree with the commenter
that the 1993 proposal to give the Regional Administrator authority to
require submission of the requested information in this section at any
time is vague, and have therefore withdrawn that part of the proposal.
We will only require such information after the discharges specified in
this section.
Submission of entire Plan. CWA section 311(m) provides EPA with the
authority to require an owner or operator of a facility subject to
section 311 to make reports and provide information to carry out the
objectives of section 311; and CWA section 308(a) provides us with
authority to require the owner or operator of any ``point source'' to
make such reports as the Administrator may reasonably require.
Therefore, we disagree that submission of the entire Plan is always
necessary when reporting discharges under Sec. 112.4(a). We believe the
information now required to be submitted is adequate to assess the
cause of discharge and the ability of the facility to prevent future
discharges. If the RA believes that the entire Plan has utility, he can
request it. However, we disagree that RAs will always require
submission of the Plan, or other information not required, as a matter
of course. RAs may use their administrative discretion not to require
the submission of Plan information or other additional information.
Discharge threshold. 42 gallons. We agree that a higher threshold
of reporting discharges is justifiable because we believe that only
larger discharges should trigger an EPA obligation to review a
facility's prevention efforts. We also agree that a higher threshold
should trigger a facility's obligation to submit information and
possibly have to take further prevention measures. Therefore, we have
changed the threshold for reporting after two discharges as described
in Sec. 112.1(b). Under the revised rule, if you are the owner or
operator of a facility subject to this part, you must only submit the
required information when in any twelve month period there have been
two discharges as described in Sec. 112.1(b), in each of which more
than 42 U.S. gallons, or one barrel, has been discharged. We adopted
the 42 gallon threshold on a commenter's suggestion. We believe that a
42 gallon threshold is the appropriate one to trigger a facility's
information and possibly to have to take further prevention measures.
When multiple discharges occur at a facility subject to the SPCC
program, such as a generating station, they often involve the discharge
of very small amounts of oil, and these discharges tend to come
randomly from a lube pipe, an oil level sight glass crack, or some
other apparatus, and do not normally indicate a recurring problem with
the container. Having two or more of these small discharges does not
indicate that the facility's SPCC Plan requires revision. The other
reporting threshold of 1,000 gallons in any a single discharge as
described in Sec. 112.1(b) remains the same.
We disagree that a sheen caused by a discharge as described in
Sec. 112.1(b) over the threshold amount that disappears within 24 hours
should not require submission of information. The discharge itself may
indicate a serious problem at the facility which needs to be corrected.
The discharge report may give us the information necessary to require
specific correction measures.

[[Page 47088]]

``Sheen'' rule. The duty imposed by the CWA to report to the
National Response Center all discharges that may be harmful, further
described by 40 CFR 110.3, is unchanged. Those discharges include
discharges that violate applicable water quality standards; or, cause a
film or sheen upon or discoloration of the surface of the water or
adjoining shorelines or cause a sludge or emulsion to be deposited
beneath the surface of the water or upon adjoining shorelines.
Maps, flow diagrams, and charts. In response to comments which
questioned the usefulness of such information, we have modified the
provision regarding maps, flow diagrams, topographical maps (now
required by paragraph (a)(6) of the current rule) to clarify that only
the information necessary to adequately describe the facility and
discharge, such as maps, flow diagrams, or topographical maps is
necessary--not necessarily all of the information listed in the
paragraph. To effect this change, we added the words ``as necessary''
after ``topographical maps.'' ``As necessary'' means as determined by
the owner or operator, subject to the obligations of this rule, unless
the RA requests more information. There might be circumstances in which
the owner or operator would submit only a brief description of the
facility or a map, for example, because flow diagrams and topographical
maps were unnecessary to describe the discharge, and would not help the
RA to determine whether any amendment to the Plan was necessary to
prevent future discharges as described in Sec. 112.1(b).
Off-site category. There is no necessity for an ``off-site''
category of discharges as described in Sec. 112.1(b) because only a
discharge as described in Sec. 112.1(b) that originates in a facility
subject to this part counts for purposes of Sec. 112.4(a).
Calculation of time for discharge reports required by
Sec. 112.4(a). We believe a ``rolling'' basis is the appropriate method
to calculate a discharge as described in Sec. 112.1(b) for purposes of
the rule because discharges as described in Sec. 112.1(b) that are
closer in time are more likely to be related in cause. Discharges that
are more proximate in time may indicate a problem that needs to be
remedied. A ``rolling basis'' means that each discharge as described in
Sec. 112.1(b) triggers the start of a new twelve month period. For
example, if discharge #1 occurred on January 1, and if
discharge #2 occurred on June 2, discharge #2 would
trigger the regulatory submission and would start a new twelve month
period. If discharge #3 occurred on the following February 3,
it would again trigger a submission, because discharge #3 would
be within 12 months of discharge #2. While the ``rolling
basis'' would trigger more regulatory submissions than the ``block
basis,'' we believe that it would enhance environmental protection
because it would call potential problems to the attention of the
Regional Administrator sooner, and allow them to be remedied sooner by
a Plan amendment where necessary.
``Block'' basis. The other approach would be to use a ``block''
period. Under this type of calculation, each third discharge as
described in Sec. 112.1(b) would not trigger a submission if it
occurred within 12 months of discharge #2, but it would start
the beginning of a new 12 month period. For example, if discharge
#1 occurred on January 1, and discharge #2 on June 2,
discharge #2 would trigger a submission. Discharge #3
on the following February 3 would not trigger a submission, but would
start a new 12 month period. The principal justification for block
reporting is also that discharges more closely related in time are more
likely to be related. Our concern with this method is that if the
February 3 discharge (i.e., discharge #3) is within twelve
months of discharge #2, this situation could indicate that
there is a problem that has not been remedied, so the February 3
discharge should trigger a reporting submission.
Maximum storage or handling capacity. In 1997, we proposed deletion
of current paragraph (5) (renumbered as paragraph (4) in today's final
rule), concerning the maximum storage or handling capacity of the
facility and normal daily throughput. We have reconsidered this
proposal and decided to withdraw it because the referenced information
is necessary information. We have therefore retained the language in
the rule. Storage capacity and normal daily throughput are important
indicators of the impact of a potential discharge as described in
Sec. 112.1(b).
Additional information. If the Regional Administrator requires
other information, for example, concerning the spill pathway, or any
response measures taken, this request is authorized under renumbered
Sec. 112.4(a)(9), current Sec. 112.4(a)(11).
Adjoining shorelines, natural resources, affected natural
resources. Discharges into navigable waters are not the only discharges
reportable for purposes of this section. We note that any discharge as
described in Sec. 112.1(b) is also within the scope of this section's
reportable discharges.
Editorial changes and clarifications. If a particular information
request is inapplicable, you may omit it, but must explain why it is
inapplicable. Several plural nouns like ``names'' and ``causes'' become
singular. Wherever the phrase ``and/or'' appears, we have revised the
phrase to read ``and.'' In 1997's proposed Sec. 112.4(a)(6),
redesignated as Sec. 112.4(a)(7), ``spill'' becomes ``discharge as
described in Sec. 112.1(b).'' In 1997's proposed Sec. 112.4(a)(8),
redesignated as Sec. 112.4(a)(9), ``spill event'' becomes
``discharge.''

Section 112.4(b)--Applicability of Sec. 112.4

Background. Under current Sec. 112.4(b), the Sec. 112.4
requirements for spill reporting do not apply until the expiration of
the time permitted for the preparation and implementation of a Plan
pursuant to Sec. 112.3(a), (b), (c), and (f). In 1991, we proposed that
Sec. 112.4 would not apply until the expiration of the time permitted
for the preparation and implementation of a Plan under Sec. 112.3(f)
only. Section 112.3(f) is the time period in which you are permitted to
prepare and implement a Plan under an extension request.
We proposed to delete the references to Sec. 112.3(a), (b) and (c)
because the current time periods allowed in these paragraphs for the
preparation and implementation of the Plan (before commencement of
operation for new facilities or mobile facilities, or after the
effective date of the rule for other existing facilities) were proposed
for deletion. Because future facilities would generally have a Plan
prepared and implemented before beginning operations, there was no
longer a need to temporarily relieve facilities of spill reporting
obligations under Sec. 112.4(a), unless the Regional Administrator
granted an extension under Sec. 112.3(f) to prepare and implement a
Plan. We received no comments on this proposal.
In today's rule, however, we have revised Sec. 112.3 to extend the
time lines for certain facilities to prepare and implement Plans. To
accord with this change, we are maintaining the approach under current
Sec. 112.4(b) to provide that the Sec. 112.4 spill reporting
requirements will not apply until the expiration of the time permitted
for the initial preparation and implementation of a Plan under
Sec. 112.3(a), (b), (c), and (f). Today, we have also revised
Sec. 112.3(a) to provide an extended time line for preparing a Plan
amendment and Sec. 112.3(f) to provide for an extension request for an
amendment to a Plan. Therefore, we have also revised Sec. 112.4(b) to
provide that the obligation to submit information as required by

[[Page 47089]]

Sec. 112.4(a) does not arise until the expiration of the time permitted
for the initial preparation and implementation of the Plan under
Sec. 112.3, but not for any amendments to the Plan. We did not
previously propose to relieve facilities of Sec. 112.4 reporting
requirements during Plan amendments or extensions for Plan amendments.
An amendment may or may not be directly related to the cause of the
discharge as described in Sec. 112.1(b), and therefore may have little
relevance to the duty to submit discharge reports to EPA.

Section 112.4(c)--Supplying Discharge Information to the States

Background. In 1991, we proposed that you must provide the same
discharge information that you submit to the Regional Administrator
under Sec. 112.4(a) to the State agency in charge of oil pollution
control activities. The current rules require that you provide that
information to the State agency in charge of water pollution control
activities.
Comments. Legal authority. One commenter suggested that we have no
legal authority for the proposal. Another commenter asserted that EPA
could only implement State agency recommendations if those
recommendations fell within the scope of the SPCC rule.
In general. Several commenters suggested the proposal was redundant
and unnecessary, because only EPA regulates the SPCC program, not the
States.
State agency review. One commenter, a State, favored the proposal
and noted that more than one State agency has statutory jurisdiction
over oil pollution control in that State. That State and another
suggested that all relevant State agencies receive the information. One
commenter suggested that EPA should identify the appropriate State
agency to which notice is due. One commenter thought the proposed
change was misleading. Another commenter, a State, suggested that EPA
provide the States money to review the submitted discharge information.
Response to comments. Legal authority. We have ample legal
authority to finalize this rule. A similar rule has been in effect
since 1974. Section 311(j)(1) of the CWA authorizes the Federal
government (and EPA through delegation) to establish ``procedures,
methods, and equipment and other requirements for equipment to prevent
discharges of oil. * * *'' Section 112.4(c) of this rule is a procedure
to help prevent discharges that fall within the scope of that statutory
provision. It enables States to learn of discharges reported to EPA and
to make recommendations as to further procedures, methods, equipment,
and other requirements that might prevent such discharges at the
reporting facility.
We can only implement State agency suggestions that are within the
scope of our authority under section 311 of the CWA.
In general. The commenter is correct that the SPCC program is a
Federal program, but we believe that in working with the States, we can
improve the Federal program through coordination with State oil
pollution prevention programs. Therefore, we believe that the
information provided to States is neither redundant nor unnecessary.
Nor is the section misleading; it clearly states the obligation of the
owner or operator.
State agency review. We modified the 1991 proposal on the
commenters' suggestion to include notice to any appropriate State
agency in charge of oil pollution control activities, since there may
be more than one such agency in some States and all may have need for
the information. We do not list such agencies in the rule, as a
commenter suggested, because the names and jurisdiction of the State
agencies are subject to change. It is the reporter's obligation to
learn which State agencies receive the discharge reports. Most States
publish documents on an ongoing basis, similar to the Federal Register,
which publicize relevant regulatory information.
We do not provide State agencies funds to review these discharge
reports due to budgetary constraints. While we assume that many States
review these reports carefully, we cannot require them to do so. Thus,
this action is not an unfunded mandate from the Federal government to
the States. But if States do review the reports, they do so at their
own expense.
Editorial changes and clarifications. In the last sentence of the
paragraph, ``discharges of oil'' becomes ``discharges.''

Section 112.4(d)--Amendment of Plans Required by the Regional
Administrator

Background. In 1991, we proposed that after review of materials
under 112.4(a), the Regional Administrator (RA) might require amendment
of the SPCC Plan. We also proposed that the RA might require Plan
amendment after reviewing contingency plan materials submitted for
approval. See proposed Sec. 112.7(d), 1991.
In 1993, we proposed that the RA would also have authority to
require Plan amendment after on-site review of the Plan. In addition,
we proposed a clause empowering the RA to approve the Plan or require
amendment.
We also proposed in 1993 allowing the RA to require submission of
the information listed in Sec. 112.4(a) at any time. The rationale to
get this information was to prevent discharges from happening, in
addition to seeking to correct the conditions that may have caused the
discharge. See the background and response to comments under
Sec. 112.4(a) for a discussion of this proposal.
Comments. Regional Administrator approval of Plans. Several
commenters criticized the idea of RA approval of the Plan on the theory
that it is an unwarranted intrusion into the manner in which operators
do business. Another urged an appeal process if EPA approval of Plans
is required.
Plan information and amendments. One commenter argued that allowing
EPA to require submission of the information required in Sec. 112.4(a)
at any time and to require Plan amendments at any time is vague and
does not provide adequate notice to the regulated community. Several
commenters were concerned that EPA would inconsistently require overly
stringent measures in some Plans or might require amendments unrelated
to discharge potential or which were financially unreasonable. Two
commenters urged a time limit on EPA decision making following
submission of required information. Another commenter was concerned
that no provision required PE certification of amendments required by
EPA.
Response to comments. Regional Administrator approval of Plans. We
have deleted the provision that would have allowed RA approval of
Plans. We have decided not to create a new class of SPCC Plans which
require EPA approval, either Plans submitted following certain
discharges as required by Sec. 112.4(a) or Plans with contingency
plans, because we do not believe such approval is necessary in order to
ensure effective Plans.
Plan information and amendments. We agree that allowing EPA to
require submission of the information required in Sec. 112.4(a) at any
time, and thereafter to require Plan amendments, is vague, and
therefore we have withdrawn that part of the proposal. Furthermore, it
is unnecessary because sections 308 and 311(m) of the CWA already
provides us with adequate authority to request necessary Plan
information.
While the RA will not have authority under this section to approve
Plans, he has authority to require Plan amendment. We will strive to be
as timely as possible in reviewing the

[[Page 47090]]

information when submitted, and making decisions on any required
amendments. A time limit on the RA's decision making authority would be
unnecessary because a facility may continue to operate under its
existing Plan while the RA's decision is pending. While we will
consider cost in our decision making, amendments may be required on a
case-specific basis to help prevent discharges. Any technical amendment
required would require PE certification. See Sec. 112.5(c) .
Editorial changes and clarifications. We have deleted reference to
the RA's approval of the submitted Plan in proposed paragraph (d)(2),
because the RA will not have authority to approve a Plan. He does,
however, have authority to require Plan amendment under today's
revision of Sec. 112.4(d).

Section 112.4(e)--Notification and Implementation of Required
Amendments

Background. In 1991, we reproposed the current notification
provision concerning required Plan amendments, and the time lines for
implementation of those amendments.
Comments. Who receives notice. One commenter wanted EPA to notify
railroads directly, instead of their registered agents, because of the
time lag that might occur between the time the agent received notice
and the owner or operator of the facility received notice. Another
commenter urged that we also provide notice to the facility operator,
the facility improvement owner, and the facility landowner. His
rationale for such expanded notice was that a major problem may be
addressed by the operator or EPA, without the knowledge and/or consent
of the facility improvements owner and the facility landowner.
Appeals procedure. One commenter suggested that we include a
reference to the appeal procedure for amendments in this section.
Response to comments. Who receives notice. In reply to the railroad
commenter, the rule requires notice only to the owner or operator of
the facility, and the registered agent, if any and if known. Notice
from EPA to the facility improvements owner and landowner is
unnecessary because these matters can and should be handled between the
facility owner or operator and the owner or operator of the
improvements or the landowner.
Appeals procedure. We have not included a reference to the appeals
procedures for required amendments in this section because the appeals
procedures follow immediately in the next paragraph, making such
reference redundant.
Editorial changes and clarifications. We have changed the proposed
requirement to mail a copy of the notice to the registered agent of a
corporation to a requirement that such notice be effected only if the
registered agent is known to EPA. The notification requirement for
registered agents now tracks the notification requirement for
registered agents in Sec. 112.1(f). Because we have withdrawn the
proposed requirement that a corporation submit that agent's name or
address in the submission of information required by Sec. 112.4(a),
such agent may not be known to EPA. In the last sentence of the final
rule, ``amendment of the Plan'' becomes ``amended Plan.''

Section 112.4(f)--Appeals of Required Amendments

Background. In 1991, we reproposed the current appeals procedures
for required Plan amendments. We received no substantive comments.
Therefore, we have promulgated the procedures as proposed.
Editorial changes and clarifications. We deleted language
concerning the ``designee'' of the EPA Administrator because it is
unnecessary. Current delegations allow the Administrator to delegate
this function.

Section 112.5(a)--Plan Amendment by an Owner or Operator

Background. In 1991, we proposed to require that an owner or
operator amend the Plan before making any change in facility design,
construction, operation, or maintenance materially affecting the
facility's potential for the discharge of oil into the waters of the
United States unless the RA granted an extension. We also listed some
examples of facility changes which would require Plan amendment, noting
that these examples were not an exclusive list.
Comments. When amendment is necessary. Several commenters favored
the proposal. Others provided differing standards for amending Plans. A
number of commenters suggested that no amendments should be necessary
when a facility change results in a decrease in the volume stored or a
decrease in the potential for an oil spill. Another suggested a
standard that amendments should be made ``when there are indicia of
problems.'' A commenter suggested a standard that no amendments would
be required except for those changes which would cause the spill
potential to exceed the Plan's capabilities because day-to-day changes
do not affect the worst case spill and the Plan should not have to be
amended on a day-to-day basis. One commenter suggested that small
facilities with less than 5,000 gallon-capacity should be exempted from
the need to amend their Plans for the listed acts. Another commenter
asserted that instead of being required to amend their Plans before
changes are made, operators should be encouraged to incorporate new
procedures into their SPCC Plans to prevent and contain potential
discharges which might result from performing needed repairs and
replacements. The rationale for the suggestion was that operators will
then not ``save up'' potential amendments due to the burden of
preparing an amendment.
Material changes. Many commenters offered opinions on the examples
of material changes listed in the rule for which amendments would be
required. Some suggested that the rule should read that these are only
examples of changes that may trigger amendment. Several commenters
suggested that decommissioning a tank should not trigger an amendment
because ``as a tank is removed, so is the requirement for an SPCC
Plan.'' Another commenter noted that changing a product in a tank or
cleaning a tank should not be considered commissioning or
decommissioning a tank. One commenter suggested that an amendment to
the Plan should be required when there is a change of product stored
within the tank.
Documenting no change or certain activities. Another commenter
suggested that a log book might be used instead of a Plan amendment to
document ``routine activities'' and measures taken to maintain the
spill prevention and response integrity of the facility. Several
commenters suggested that an identical replacement of tanks or other
equipment should not be considered a material change and therefore
amendment should not be required. A utility commenter asked that
facilities be allowed to accumulate minor modifications for a period of
6 months, then update the Plan.
EPA approval. Another commenter suggested that we clarify that EPA
approval of an amendment made under this section is not required.
Time line for amendment implementation. Numerous commenters opposed
the proposed requirement that a Plan be amended before any material
changes are made. Commenters suggested various alternative amendment
time lines ranging from 90 days to six months following such changes,
with a cluster of commenters around the six months alternative. Others
suggested that the Plan be

[[Continued on page 47091]]

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Oil Pollution Prevention and Response; Non-Transportation-Related Onshore and Offshore Facilities

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