[Federal Register: October 15, 2007 (Volume 72, Number 198)]
[Proposed Rules]
[Page 58377-58445]
[DOCID:fr15oc07-16]

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Part II

Environmental Protection Agency

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40 CFR Part 112

Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Requirements--Amendments; Proposed Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8479-7]
RIN 2050-AG16

Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Rule Requirements--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to amend the Spill Prevention, Control, and Countermeasure
(SPCC) rule in order to provide increased clarity, to tailor
requirements to particular industry sectors, and to streamline certain
requirements for a facility owner or operator subject to the rule.
Specifically, EPA is proposing to: Exempt hot-mix asphalt; exempt
pesticide application equipment and related mix containers used at
farms; exempt heating oil containers at single-family residences; amend
the facility diagram requirement to provide additional flexibility for
all facilities; amend the definition of ``facility'' to clarify the
flexibility associated with describing a facility's boundaries; define
``loading/unloading rack'' to clarify the equipment subject to the
provisions for facility tank car and tank truck loading/unloading
racks; provide streamlined requirements for a subset of qualified
facilities; amend the general secondary containment requirement to
provide more clarity; amend the security requirements for all
facilities; amend the integrity testing requirements to allow a greater
amount of flexibility in the use of industry standards at all
facilities; amend the integrity testing requirements for containers
that store animal fat or vegetable oil and meet certain criteria;
streamline a number of requirements for oil production facilities; and
exempt completely buried oil storage tanks at nuclear power generation
facilities. These changes tailor requirements to particular industries
for easier and increased compliance, resulting in greater protection of
human health and the environment. EPA is also providing clarification
in the preamble to this proposed rule on additional issues raised by
the regulated community.

DATES: Comments must be received on or before December 14, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2007-0584, by one of the following methods:
     http://www.regulations.gov: Follow the on-line

instructions for submitting comments.
     Mail: EPA Docket, Environmental Protection Agency, Mail
code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2007-0584. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.

The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov,

your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA Docket, EPA/DC, EPA

West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the EPA
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil Information Center at<PHONE_NUMBER>
or TDD<PHONE_NUMBER> (hearing impaired). In the Washington, DC
metropolitan area, call<PHONE_NUMBER> or TDD<PHONE_NUMBER>. For more
detailed information on specific aspects of this proposed rule, contact
either Vanessa E. Rodriguez at<PHONE_NUMBER>
rodriguez.vanessa@epa.gov), or Mark W. Howard at<PHONE_NUMBER>
howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
    A. Hot-Mix Asphalt
    1. Proposed Exemption for Hot-Mix Asphalt
    2. Alternative Options Considered
    B. Farms
    1. Exemption for Pesticide Application Equipment and Related Mix
Containers
    2. Applicability of Mobile Refueler Requirements to Farm Nurse
Tanks
    3. Alternative Options Considered
    C. Residential Heating Oil Containers
    1. Exemption for Residential Heating Oil Containers
    2. Alternative Option Considered: Exemption for Residential
Heating Oil Containers Only at Farms
    D. Definition of Facility
    1. Proposed Revisions to the Definition of Facility
    2. Determining the Components of a Facility: Examples of
Aggregation or Separation
    3. Alternative Options Considered
    E. Facility Diagram
    1. Proposed Revision to the Facility Diagram Requirement
    2. Indicating Complicated Areas of Piping or Oil-Filled
Equipment on a Facility Diagram
    F. Loading/Unloading Racks
    1. Proposed Loading/Unloading Rack Definition

    2. Requirements for Loading/Unloading Racks
    3. Exclusions
    4. Alternative Option Considered: No Action
    G. Tier I Qualified Facilities
    1. Eligibility Criteria
    2. Provisions for Tier I Qualified Facilities
    3. SPCC Plan Template
    4. Self-Certification and Plan Amendments
    5. Tier II Qualified Facility Requirements
    6. Alternative Options Considered: No Action
    H. General Secondary Containment
    1. Proposed Revisions to the General Secondary Containment
Requirement
    2. Alternative Option Considered: No Action
    3. General Secondary Containment for Non-Transportation-Related
Tank Trucks
    I. Security
    1. Proposed Revisions to the Security Requirements
    2. Alternative Option Considered: No Action
    J. Integrity Testing
    1. Proposed Amendments to Integrity Testing Requirements
    2. Alternative Option Considered: No Action
    K. Animal Fats and Vegetable Oils
    1. Differentiation Criteria
    2. Required Recordkeeping
    L. Oil Production Facilities
    1. Definition of Production Facility
    2. SPCC Plan Preparation and Implementation
    3. Flowlines and Intra-facility Gathering Lines
    4. Flow-Through Process Vessels
    5. Small Oil Production Facilities
    6. Produced Water Storage Containers
    7. Clarification of the Definition of Permanently Closed
Containers
    8. Oil and Natural Gas Pipeline Facilities
    M. Man-Made Structures
    1. Secondary Containment
    2. Integrity Testing
    N. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
    O. Wind Turbines
    P. Technical Corrections
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children From
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

    The Environmental Protection Agency (EPA or the Agency) is
proposing several amendments to the Spill Prevention, Control, and
Countermeasure (SPCC) rule to address a number of issues that have been
raised by the regulated community. These proposed amendments are
intended to increase clarity, tailor, and streamline certain
requirements for a facility owner or operator who is required to
prepare an SPCC Plan. Specifically:
     EPA proposes to exempt hot-mix asphalt (HMA) from the SPCC
requirements. EPA believes it is unnecessary to apply the SPCC
requirements to HMA. EPA would continue to regulate asphalt cement,
asphalt emulsions, and cutbacks, which are not hot-mix asphalt, but is
describing in this notice the flexibility contained in the SPCC rule
regarding these materials.
     EPA proposes certain tailored requirements benefiting
farms. Specifically, EPA proposes to exempt pesticide application
equipment and related mix containers used at farms, that may currently
be subject to the SPCC rule when crop oil or adjuvant oil are added to
formulations. In addition, EPA seeks to clarify that the amendment
related to mobile refuelers, as promulgated in the December 2006 rule
amendments (71 FR 77266, December 26, 2006), can be used by farmers to
address oil spill prevention requirements for fuel nurse tanks.
     EPA proposes to exempt residential heating oil containers,
i.e., those used solely at single-family residences, from the SPCC
requirements. This exemption would apply to aboveground containers, as
well as completely buried heating oil tanks at single-family
residences, including those located at farms.
     EPA proposes to modify the definition of ``facility'' to
clarify that contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines may be
considered separate facilities, and to specify that the ``facility''
definition governs the applicability of 40 CFR part 112. These proposed
revisions would allow an owner or operator to separate or aggregate
containers to determine the facility boundaries, based on such factors
as ownership or operation of the buildings, structures, containers, and
equipment on the site, the activities being conducted, property
boundaries, and other relevant considerations.
     EPA proposes to revise the facility diagram requirement at
Sec.  112.7(a)(3) to clarify how containers, fixed and mobile, are
identified on the facility diagram. Where facility diagrams become
complicated due to the presence of multiple fixed oil storage
containers or complex piping/transfer areas at a facility, the owner or
operator would be able to include that information separately in the
SPCC Plan in an accompanying table or key. For any mobile or portable
containers located in a certain area of the facility, an owner or
operator would be able to mark that area on the diagram where such
containers are stored. If the total number of mobile or portable
containers changes on a frequent basis, the owner or operator would be
able to indicate the potential range in number of containers and the
anticipated contents and capacities of the mobile or portable
containers maintained at the facility in the Plan.
     EPA proposes to define the term ``loading/unloading rack''
and specify that this definition would govern the applicability of the
provision at Sec.  112.7(h), Facility tank car and tank truck loading/
unloading rack. This amendment would provide clarity to the regulated
community over whether this provision applies to a facility.
Furthermore, EPA is proposing to specifically exclude oil production
facilities and farms from the requirements at Sec.  112.7(h), because
loading/unloading racks are not typically found at these facilities
(loading/unloading activities at these facilities will remain subject
to the general secondary containment requirements of Sec.  112.7(c)).
EPA also proposes editorial revisions to the provision at Sec.
112.7(h) for clarity.
     EPA proposes to streamline and tailor the SPCC
requirements for a subset of qualified facilities. Qualified facilities
were addressed in a recent amendment to the SPCC rule (71 FR 77266,
December 26, 2006). The owner or operator of such a facility was
provided an option to self-certify his SPCC Plan and comply with other
streamlined requirements. This proposed rule further defines a subset
of qualified facilities (``Tier I qualified facilities'') as those that
meet the current qualified facilities eligibility criteria and that
have no oil storage containers with an individual storage capacity
greater than 5,000 gallons. A Tier I qualified facility would have the
option to complete a self-certified SPCC Plan template (proposed as
Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. By
completing the SPCC Plan template, an owner or operator of a Tier I
qualified facility would certify that the facility complies with a set
of streamlined SPCC rule requirements. All other qualified facilities
will be designated ``Tier II qualified facilities''.
     EPA proposes to amend the general secondary containment
requirement at Sec.  112.7(c) to make clear that the scope of secondary
containment takes into

consideration the typical failure mode, and most likely quantity of oil
that would be discharged, consistent with current Agency guidance. This
proposed amendment would also provide additional examples of prevention
systems for onshore facilities found at Sec.  112.7(c)(1).
     EPA proposes to amend the facility security requirements
at Sec.  112.7(g) to allow an owner or operator to tailor his security
measures to the facility's specific characteristics and location. A
facility owner or operator would be required to describe in the SPCC
Plan how he secures and controls access to the oil handling,
processing, and storage areas; secures master flow and drain valves;
prevents unauthorized access to starter controls on oil pumps; secures
out-of-service and loading/unloading connections of oil pipelines; and
addresses the appropriateness of security lighting to both prevent acts
of vandalism and assist in the discovery of oil discharges. This
proposed action would extend the streamlined security requirements that
EPA provided to a qualified facility in the December 2006 final rule
(71 FR 77266, December 26, 2006) to all facilities subject to the
security requirements.
     EPA proposes to amend the requirements at Sec. Sec.
112.8(c)(6) and 112.12(c)(6) to provide flexibility in complying with
bulk storage container integrity testing requirements. Specifically,
EPA is proposing to modify the current provision to allow an owner or
operator to consult and rely on industry standards to determine the
appropriate qualifications for tank inspectors/testing personnel and
the type/frequency of integrity testing required for a particular
container size and configuration. This proposed action would extend the
streamlined bulk storage container inspection requirement that EPA
provided to qualified facilities in the December 2006 final rule (71 FR
77266, December 26, 2006) to all facilities subject to the integrity
testing provision.
     EPA proposes to differentiate the integrity testing
requirements at Sec.  112.12(c)(6) for an owner or operator of a
facility that handles certain types of animal fats and vegetable oils.
Specifically, EPA proposes to provide the PE or an owner/operator
certifying an SPCC Plan with the flexibility to determine the scope of
integrity testing that is appropriate for containers that store animal
fats or vegetable oil and that meet other criteria.
     EPA proposes several amendments to tailor the requirements
for oil production facilities to address a number of concerns that have
been raised by representatives of this sector. Specifically, EPA is
proposing to: Modify the definition of production facility, consistent
with the proposed amendments to the definition of facility; extend the
timeframe by which a new oil production facility must prepare and
implement an SPCC Plan; exempt flow-through process vessels at oil
production facilities from the sized secondary containment requirements
while maintaining general secondary containment requirements and
requiring additional oil spill prevention measures; exempt flowlines
and intra-facility gathering lines at oil production facilities from
all secondary containment requirements, while establishing more
specific requirements for a flowline/intra-facility gathering line
maintenance program and contingency planning; and clarify the
definition of ``permanently closed'' as it applies to an oil production
facility. EPA also describes approaches that would establish
alternative criteria for an oil production facility to be eligible to
self-certify an SPCC Plan as a qualified facility, and approaches to
address produced water storage containers at oil production facilities.
     EPA proposes to exempt completely buried oil storage tanks
at nuclear power generation facilities that are subject to design
criteria under Nuclear Regulatory Commission regulations.
    In this notice, EPA is also clarifying a number of issues of
concern to the regulated community, including: the consideration of
man-made structures in determining how to comply with SPCC rule
requirements; and the applicability of the rule to wind turbines that
are used to produce electricity. EPA also proposes technical
corrections to Sec. Sec.  112.3 and 112.12.

II. Entities Potentially Affected by This Proposed Rule

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

Government...................................                         92
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    The list of potentially affected entities in the above table may
not be exhaustive. The Agency's goal is to provide a guide for readers
to consider regarding entities that potentially could be affected by
this action. However, this action may affect other entities not listed
in this table. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority and Delegation of Authority

    Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33
U.S.C. 1321(j)(1)(C), requires the President to issue regulations
establishing procedures, methods, equipment, and other requirements to
prevent discharges of oil to navigable waters and adjoining shorelines
from vessels and facilities and to contain such discharges. The
President delegated the authority to regulate non-transportation-
related onshore facilities to EPA in Executive Order 11548 (35 FR
11677, July 22, 1970), which was replaced by Executive Order 12777 (56
FR 54757, October 22, 1991). A Memorandum of Understanding (MOU)
between the U.S. Department of Transportation (DOT) and EPA (36 FR
24080, November 24, 1971) established the definitions of
transportation-related and non-transportation-related facilities. An
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59
FR 34102, July 1, 1994) re-delegated the responsibility to regulate
certain offshore facilities from DOI to EPA.

IV. Background

    The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164). On July 17, 2002, EPA published a final rule amending the
SPCC rule, formally known as the Oil Pollution Prevention regulation
(40 CFR part 112). The 2002 rule included revised requirements for SPCC
Plans and for Facility Response Plans (FRPs). It also included new
subparts outlining the requirements for various classes of oil; revised
the applicability of the regulation; amended the requirements for
completing SPCC Plans; and made other modifications (67 FR 47042). The
revised rule became effective on August 16, 2002. After publication of
this rule, several members of the regulated community filed legal
challenges to certain aspects of the rule. All but one of the issues
raised in the litigation have been settled, following which EPA
published clarifications in the Federal Register to several aspects of
the revised rule (69 FR 29728, May 25, 2004).\1\ In addition, concerns
were raised about the implementability of certain aspects of the 2002
rule.
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    \1\ American Petroleum Institute v. Leavitt, No. 1:102CV02247
PLF and consolidated cases (D.D.C. filed Nov. 14, 2002). The
remaining issue to be decided concerns the definition of ``navigable
waters'' in Sec.  112.2.
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    As a result, EPA proposed amendments to the SPCC rule in December
2005 and finalized them in December 2006 to address a number of issues,
including those pertaining to certain ``qualified'' facilities,
qualified oil-filled operational equipment, motive power containers,
mobile refuelers, provisions inapplicable to animal fats and vegetable
oils, and the compliance date for farms. See the final rule which
published in the Federal Register at 71 FR 77266 (December 26, 2006)
for a more detailed discussion of these amendments.
    Also, in December 2005, EPA released the SPCC Guidance for Regional
Inspectors. EPA intends to issue revisions to this guidance document to
incorporate changes consistent with the December 2006 amendments to the
SPCC rule (71 FR 77266, December 26, 2006). This guidance document is
intended to assist regional inspectors in reviewing the implementation
of the SPCC rule at a regulated facility. The guidance document is
designed to facilitate an understanding of the rule's applicability, to
help clarify the role of the inspector in the review and evaluation of
a facility owner or operator's compliance with the performance-based
SPCC requirements, and to provide a consistent national policy on
several SPCC-related issues. The guidance is available to the owner or
operator of a facility that may be subject to the SPCC rule and to the
general public on the Agency's Web site at http://www.epa.gov/emergencies.
 This guidance is a living document and will be revised, as

necessary, to reflect any relevant future regulatory amendments,
including any final rule based on this proposed action.
    In addition, EPA has amended the dates for compliance with the July
2002 amendments to the SPCC rule by extending the dates for preparing
or amending, and implementing revised SPCC Plans in 40 CFR 112.3(a),
(b), and (c), most recently by final rule published May 16, 2007 (72 FR
27443). EPA took the most recent action to provide facilities time to
fully understand the amendments to the SPCC rule finalized in December
2006 and to allow potentially affected owners and operators an
opportunity to make any changes to their facilities and to their SPCC
Plans, as well as to provide time for the Agency to take final action
on this proposal. Additionally, EPA intends to provide the regulated
community time to review and understand any revised material presented
in the SPCC Guidance for Regional Inspectors. Please see the Federal
Register notice (72 FR 27443, May 16, 2007) for further discussion of
the compliance date extensions.
    The December 2006 final rule (71 FR 77266, December 26, 2006)
addressed only certain areas of the SPCC requirements and specific
issues and concerns raised by the regulated community. As highlighted
in the EPA Regulatory Agenda and the 2005 Office of Management and
Budget report on ``Regulatory Reform of the U.S. Manufacturing
Sector,'' EPA is proposing amendments in this notice to address other
areas where further changes may be appropriate.

V. This Action

A. Hot-mix Asphalt

    Hot-mix asphalt (HMA) is a blend of asphalt cement (AC) and
aggregate material, such as stone, sand, or gravel, which is formed
into final paving products for use on roads and parking lots. All types
of asphalt, including HMA, are petroleum oil products. As a result, a
facility that stores and handles HMA may currently be regulated under
the SPCC rule, if the applicability criteria are met (e.g., storage
capacity thresholds and potential for a discharge into navigable waters
or adjoining shorelines). As such, SPCC requirements, including
secondary containment, apply to HMA containers. However, EPA never
intended that HMA be included as part of a facility's SPCC Plan,
particularly facilities which may be subject to the SPCC requirements
solely because of the presence of HMA. Taken to the extreme, it could
be argued that roads, parking lots, or other asphalt paving projects

would be part of a facility's SPCC Plan. That was not and is not the
Agency's intent.
    In addition, because this material is unlikely to flow as a result
of the entrained aggregate, there are few circumstances in which a
discharge of HMA would reach navigable waters or adjoining shorelines.
As a result, EPA is proposing to revise the rule to eliminate the
requirement for an owner or operator of a facility otherwise subject to
the SPCC rule to include a HMA container in the facility's SPCC Plan or
aggregate storage capacity calculations.
1. Proposed Exemption for Hot-Mix Asphalt
    This proposed rule amendment would exempt HMA from SPCC rule
applicability by adding a new paragraph (8) under the general
applicability section, Sec.  112.1(d). Furthermore, EPA proposes to
modify Sec.  112.1(d)(2) so that the capacity of storage containers
solely containing HMA would not be counted toward the facility oil
storage capacity calculation. The Regional Administrator would continue
to have the option under Sec.  112.1(f), however, to require an owner
or operator of a facility, including one solely handling HMA, to
prepare or amend and implement an SPCC Plan or any applicable part, to
include HMA containers if he determines that it is necessary in order
to prevent a discharge of oil into navigable waters or adjoining
shorelines.
    For those substances that are not eligible for the proposed
exemption, the SPCC rule provides the facility owner or operator with
significant flexibility to select prevention and control measures that
are appropriate and cost effective for the facility and type of product
being stored. For example, the secondary containment requirements of
the SPCC rule may be satisfied if the secondary containment system,
including walls and floor, are capable of containing the oil and are
constructed so that any discharge from a primary containment system
will not escape secondary containment before cleanup occurs (Sec.
112.7(c)) and diked areas are sufficiently impervious to contain the
oil (Sec.  112.8(c)(2)). Therefore, the flow properties of asphalt
cement (AC), for example, (as for any oil) may be considered in
designing appropriate means of containment. If, once cooled, the oil
remains in place, an effective means of secondary containment may
involve surrounding the bulk storage container with an earthen berm
that will contain the oil until it can solidify. As stated in the SPCC
Guidance for Regional Inspectors (version 1.0, November 28, 2005),
``The suitability of earthen material for secondary containment systems
may depend on the properties of both the product stored and the soil.
For example, compacted local soil may be suitable to contain a viscous
product, such as liquid AC, but may not be suitable to contain
gasoline.'' If an owner or operator chooses to use an earthen berm as a
method of secondary containment, the facility owner or operator should
consider, among other factors, the effect of weather, vehicle and
worker movement, access, and safety, in accordance with good
engineering practice.
    Furthermore, a facility owner or operator does not necessarily need
to construct a berm around an asphalt cement container to satisfy the
secondary containment requirements; he may opt to use a storm water
retention pond or other similar structure or existing natural terrain
features that would serve to divert, remotely impound, and prevent the
discharge to navigable waters or adjoining shorelines. EPA notes that
oil discharged into secondary containment needs to be removed promptly
so that the containment system retains its appropriate capacity.
    Finally, the Agency would note that the SPCC rule only applies to
facilities that, due to their location, can reasonably be expected to
discharge oil to navigable waters or adjoining shorelines. In
determining whether there is a reasonable expectation of discharge, an
owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. Therefore, the owner or
operator of a facility that stores or handles only those oils that are
solid at ambient temperatures may conclude that the facility is not
subject to the SPCC rule. However, if a facility owner or operator
determines that there is a reasonable expectation to discharge oil to
navigable waters or adjoining shorelines for a single oil container,
all oil containers at the facility are subject to the rule's
requirements.
    Although this proposed amendment would provide an exemption from
the SPCC requirements for containers of HMA, HMA manufacturers and
other facilities that use, store, distribute, or otherwise handle HMA
may still be subject to the SPCC requirements due to the storage
capacity of other types of oils (e.g., No. 2 fuel oil and heat transfer
oils) at the facility.
    The Agency seeks comments on the proposed exemption for HMA. Any
alternative approach presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider it
for final action.
2. Alternative Options Considered
a. No Action
    EPA considered taking no regulatory action regarding this issue.
Under this option, a facility owner or operator would continue to be
required to consider HMA in calculating the facility's total oil
storage capacity, and comply with all SPCC requirements related to
storage or transfer of HMA. The owner or operator would continue to
benefit from the flexibility in the SPCC rule to provide secondary
containment measures that are appropriate and cost effective for the
facility and the asphalt it stores. EPA believes that it is unnecessary
for an owner or operator of a facility that constructs roads, parking
lots, or sidewalks to develop an SPCC Plan, solely for the routine end
use of HMA as part of these operations. Moreover, as HMA is unlikely to
flow as a result of the entrained aggregate, the Agency believes there
are few circumstances in which a discharge of HMA would reach navigable
waters or adjoining shorelines. Therefore, EPA chose not to propose
this option.
b. Exemption for Asphalt Cement
    EPA considered exempting both HMA and AC from the requirements of
the SPCC rule, but chose not to propose such an option. In documents
submitted to EPA, the asphalt industry argues that AC poses a low risk
to navigable waters and adjoining shorelines, claiming that it does not
flow if spilled on the ground. The industry further argues that asphalt
facilities are either already covered under other environmentally
protective regulations or are granted a specific exemption from other
regulations due the unique nature of the product, and that the cost of
complying with the SPCC regulation is disproportionate to the risk
posed.
    Because of the operational conditions under which AC is used and
stored, AC does pose a risk of being discharged into navigable waters
and adjoining shorelines. (See EPA's report, Asphalt Under the Spill
Prevention, Control, and Countermeasure Regulation, August 29, 2007, in
the docket for this proposal.) Although AC is semi-solid or solid at
ambient temperature and pressure, it is generally stored at elevated
temperatures. Hot AC is liquid--similar to other semi-solid oils, such
as paraffin wax and heavy bunker fuels--and therefore is capable of
flowing. All of these oils are regulated under the SPCC

rule to prevent discharges to navigable waters and adjoining
shorelines.
    EPA believes that the threat that AC, as well as other semi-solid
oils, pose to navigable waters and adjoining shorelines can be
effectively addressed by implementing the procedures and measures
required under the SPCC regulation. As discussed previously, the
current SPCC regulation provides flexibility to an asphalt facility
owner and operator to account for site- and product-specific
characteristics in implementing measures to prevent oil discharges in a
cost-effective manner.
    The Agency welcomes comments on these or other alternatives that
could serve to address HMA, while at the same time maintaining
appropriate levels of environmental protection. Any alternative
approaches presented must include an appropriate rationale and
supporting data in order for the Agency to be able to consider them for
final action.

B. Farms

    The owner or operator of a farm, by virtue of storing or using oil,
is potentially subject to the SPCC requirements. The December 2006
amendments to the SPCC rule (71 FR 77266, December 26, 2006) defined a
farm as ``* * * a facility on a tract of land devoted to the production
of crops or raising of animals, including fish, which produced and
sold, or normally would have produced and sold, $1,000 or more of
agricultural products during a year.'' In providing the option for an
owner or operator of a facility that stores 10,000 gallons of oil or
less and meets other qualifying criteria to self-certify his SPCC Plan
in lieu of review and certification by a Professional Engineer, the
December 2006 amendments offered relief to an estimated 95 percent of
all SPCC-regulated farms. The 2006 amendments also exempted mobile
refuelers, which include fuel nurse tanks on farms, from the sized
secondary containment requirements for bulk storage containers (see
more detailed discussion regarding nurse tanks below). Finally, the
2006 amendments extended the date by which farms must amend their
existing SPCC Plans to come into compliance with the July 2002 rule
changes until the Agency publishes a final rule in the Federal Register
establishing a new compliance date. This proposal does not affect this
extended compliance date for farms. The Agency will propose a new
compliance date for farms in the Federal Register at a later date.
    While the December 2006 amendments provided streamlined
requirements for most of the farms that are subject to the SPCC
requirements, EPA believes further amendments to the SPCC rule are
appropriate considering the unique characteristics of farm facilities,
including their geographic scale, configuration, land ownership and
lease structure, and on-farm activities. Specifically, EPA recognizes
that a farm: May be privately owned and may contain the residence of
the owner or operator; has a configuration that varies across the
country, from farm to farm and season to season; contains low-volume
oil storage that is often dispersed across different land parcels
separated by roads and natural barriers; has multiple fueling sites; is
located in a remote area; stores oil on-site for on-farm use and not
for further distribution in commerce; uses oil seasonally in different
quantities; and leases a significant amount of land to or from
secondary parties. For these reasons, EPA is proposing additional
amendments to the SPCC rule that further benefit farms.
    As discussed in Section G of this preamble, EPA is proposing an
additional option for a subset of qualified facilities (``Tier I'')
that have a maximum individual oil storage container capacity of 5,000
gallons, by allowing these facilities to complete a simplified self-
certified SPCC Plan template in lieu of a full SPCC Plan. This option
would be available to any facility that meets the Tier I qualification
criteria, including a farm. EPA expects that at least 128,000 farms (or
more than 84% of the farms regulated by the SPCC rule) may be eligible
for this proposed option.
    EPA is also proposing to clarify the definition of ``facility'' in
the SPCC rule, as discussed in Section D of this preamble. The proposed
definition would clarify the existing flexibility for a facility owner
or operator, particularly for a farmer, to define oil storage areas
located on either contiguous or non-contiguous parcels of land (e.g.,
satellite storage areas) as separate facilities for the purpose of
determining SPCC applicability and preparing/implementing an SPCC Plan.
    Under this proposal (see Section C), EPA would exempt heating oil
containers at single-family residences. EPA understands that farms
often include, within the geographical confines of the facility, the
residence of the owner or operator, and so the Agency believes this
proposed amendment also will be of benefit to farms.
    This proposal (see Section I) also addresses streamlining of the
security requirements under Sec.  112.7(g) to allow more flexibility in
determining how best to secure and control access to the oil handling,
processing and storage areas; secure master flow and drain valves;
prevent unauthorized access to starter controls on oil pumps; secure
out-of-service and loading/unloading connections of oil pipelines; and
address the appropriateness of security lighting to both prevent acts
of vandalism and assist in the discovery of oil discharges. This
amendment will particularly benefit the owner or operator of a farm,
because it allows for consideration of site-specific factors in
determining how best to design security for the facility to prevent
vandalism and detect spills from oil-handling areas. An owner or
operator of a farm may also benefit from the currently proposed
amendments related to loading/unloading racks (Section F of this
preamble) and integrity testing (Section J).
    The Agency believes that both the amendments finalized in 2006 and
those being proposed in this notice provide significant flexibility to
the agricultural sector. In this action, the Agency also is proposing
further amendments to the SPCC rule to address concerns specific to the
agricultural community regarding pesticide application equipment and
related mix containers used at farms. The proposed amendments was
informed by information collected by EPA through site visits to farms
and numerous consultations with the U.S. Department of Agriculture
(USDA). Farm site visits helped EPA further understand oil storage
characteristics at a variety of farm operation types and sizes. The
site visits included dairy farms, an orchard, an agribusiness supply
company, and two rice farms.
1. Exemption for Pesticide Application Equipment and Related Mix
Containers
    EPA is proposing to amend the SPCC rule by adding a new paragraph
(10) under the general applicability section, Sec.  112.1(d) to exempt
pesticide application equipment and related mix containers used at
farms from the SPCC requirements. EPA also proposes to modify Sec.
112.1(d)(2) so that the capacity of these pesticide application
equipment and related mix containers (i.e., containers used to mix
pesticides with oil immediately prior to application) would not be
counted toward the facility oil storage capacity calculation. This
equipment includes ground boom applicators, airblast sprayers, and
specialty aircraft that are used to apply measured quantities of
pesticides to crops and/or soil. The pesticide formulation may include
petroleum-or vegetable-based oils in concentrated formulations or may

contain crop oil or adjuvant oil in the mix formulations added just
prior to application, thereby potentially subjecting certain pesticide
containers to the SPCC requirements, such as those for bulk storage
containers under Sec. Sec.  112.8(c) and 112.12(c). Containers storing
oil prior to blending it with the pesticide, and containers used to
store any pesticides after they have been mixed with oil, are
considered bulk storage containers and are regulated as such under the
SPCC rule.
    EPA regulates pesticides under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA), which establishes requirements for the
registration and labeling of pesticides. Sections 19(e) and (f) of
FIFRA grant EPA broad authority to establish standards and procedures
to assure the safe use, reuse, storage, and disposal of pesticide
containers. Under this authority, EPA established standards, including
design and labeling requirements for pesticide containers and bulk
pesticide containment. These standards were promulgated on August 16,
2006 for certain facilities that use, reuse, or store pesticides in
containers with capacities of 500 gallons or greater (Standards for
Pesticide Containers and Containment, 40 CFR parts 156 and 165; see 71
FR 47330, August 16, 2006). Facilities subject to these standards
include pesticide registrants, agricultural retailers, and commercial
pesticide applicators; however, farms were exempted from these
standards. In evaluating the risk posed by pesticide containers and
application equipment when promulgating the Standards for Pesticide
Containment Structures in 40 CFR part 165, Subpart E, EPA noted that
on-farm bulk storage of pesticides remains rare as opposed to on-farm
bulk storage of oil, such as off-road diesel, on-road diesel and
gasoline fuels. Additionally, EPA found that there was insufficient
evidence of contamination occurring as a result of these containers or
equipment to warrant their regulation under the pesticide container-
containment rule. However, EPA reserved the option of reexamining the
need for Federal regulation of on-farm pesticide bulk storage in the
future if it became apparent that the application or use of pesticides
was having significant detrimental impacts. Similarly, EPA does not
believe that the regulation of pesticide application equipment and
related mix containers used at a farm is appropriate under the SPCC
rule.
    EPA believes that, on a farm, the storage and application of
pesticide mixtures that may contain oil just prior to application can
be addressed through the use of best management practices (BMPs) that
minimize the potential for discharges to navigable waters and adjoining
shorelines. For example, a number of states have ``Farm*A*Syst''
programs (partnerships between government agencies and private business
that foster pollution prevention on farms) that detail on-farm
pesticide BMPs such as: (1) Adhere to pesticide label instructions and
prepare only the necessary amount needed for immediate use; (2) prepare
the pesticide mix immediately before application; (3) the equipment
spray tank should be half full with water prior to mixing in the
pesticide formulation; and (4) pesticides should be mixed and loaded on
a concrete pad (Improving Storage and Handling of Pesticides, Farm-a-
Syst North Carolina, April 1997. Found at http://www.soil.ncsu.edu/assist/pesticides/.
 This document is also available in the docket for

this rule proposal).
    EPA requests comments on the proposed exemption of pesticide
application equipment and related mix containers from SPCC
applicability. Any alternative approach presented must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for final action.
2. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
    In the December 2006 amendments to the SPCC rule (71 FR 77266,
December 26, 2006), EPA exempted mobile refuelers from the sized
secondary containment requirements applicable to bulk storage
containers. In the amended regulation, EPA defined a mobile refueler as
``a bulk storage container onboard a vehicle or towed, that is designed
or used solely to store and transport fuel for transfer into or from an
aircraft, motor vehicle, locomotive, vessel, ground service equipment,
or other oil storage container.'' (Sec.  112.2). In this action, EPA
seeks to clarify that the definition of mobile refueler includes a
nurse tank, which is a mobile vessel used at farms to store and
transport fuel for transfers to or from farm equipment, such as
tractors and combines, and to other bulk storage containers, such as
containers used to provide fuel to wellhead/relift pumps at rice farms.
A nurse tank is often mounted on a trailer for transport around the
farm, and EPA believes that this function is consistent with that of a
mobile refueler. A nurse tank, like other types of mobile refuelers, is
exempt from the sized secondary containment requirements, but would
need to meet the general secondary containment requirements at Sec.
112.7(c).
    EPA does not believe that additional regulatory action is warranted
to clarify that a nurse tank at a farm can be considered a mobile
refueler. EPA welcomes comments on this approach.
3. Alternative Options Considered
    In developing the amendments proposed in this notice, EPA
considered the following alternatives for differentiating the SPCC
requirements for farms:
a. No Action
    With the promulgation of the final amendments to the SPCC rule on
December 26, 2006, EPA estimated that approximately 145,000 of the
152,000 farms subject to the SPCC rule (95 percent of regulated farms)
identified in the Regulatory Impact Analysis may be eligible for the
``qualified facility'' or self-certification option. Additionally, EPA
is proposing an alternative compliance option for a subset of qualified
facilities by adding a new tier, identified as Tier I qualified
facilities, that would provide even more flexibility to farms.
    EPA believes that considerable flexibility was provided in the
December 2006 amendments, as well as other amendments being proposed in
this notice to address the definition of facility, the security and
integrity testing requirements, residential heating oil containers, and
further streamlining of the requirements for qualified facilities.
Nevertheless, EPA has concluded based on comments from agricultural
stakeholders, farm-related site visits, and the August 16, 2006 final
action concerning pesticide containers (71 FR 47330), that additional
amendments to the SPCC rule related to farms are necessary. Therefore,
EPA chose not to propose this ``no action'' option.
b. Exempt Farms Below a Certain Storage Capacity Threshold
    EPA considered exempting farms that stored oil below a certain
storage capacity threshold from the SPCC requirements, but determined
that sufficient data to support such an exemption exclusive to farms do
not currently exist. Storage tanks found at farms are similar in
function and design as those found at other types of facilities, and
therefore have a similar potential for a discharge. Thus, an effort to
substantiate an exemption for a subset of affected farms below a
certain threshold would be difficult. As a result, EPA chose not to
propose this option.
    The Agency welcomes comments on this or other alternatives that
could serve to address the needs of the agricultural sector, while at
the same

time maintaining appropriate levels of environmental protection. Any
alternative approaches presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider them
for final action.
c. Alternative Qualified Facility Eligibility Criteria for Farms
    Under Sec.  112.6, a ``facility'' that has an aggregate above
ground storage capacity of 10,000 gallons or less and that has not had
a single discharge exceeding 1,000 U.S. gallons or two discharges each
exceeding 42 U.S. gallons within any twelve month period in the three
years prior is eligible for the ``qualified facility'' Plan
requirements (i.e. a self-certified Plan in lieu of a PE certified
Plan). The current criteria for ``qualified facilities,'' found at
Sec.  112.3(g), treat farms like all other facilities. However, there
may be alternative criteria unique to farms that would be appropriate
for identifying qualified facilities. EPA requests comment on (1)
whether a change in the criteria is appropriate for farms; and (2)
whether a higher threshold is appropriate for farms. Any alternative
approach presented must include an appropriate rationale in order for
the Agency to be able to consider it for final action.

C. Residential Heating Oil Containers

    EPA understands that many regulated facilities, including farms,
may include within the geographical confines of the facility the
residence of the owner or operator. EPA did not intend to regulate
residential uses of oil (i.e., those at non-commercial buildings) under
the SPCC rule. For example, in 1973, EPA set the minimum facility
aggregate storage capacity threshold for SPCC applicability (1,320
gallons) by considering common sizes of residential heating oil
containers. The Agency stated in the preamble to the 1973 final SPCC
rule (38 FR 34164, December 11, 1973) that containers of 660 gallons
are the normal domestic code size for nonburied heating oil containers,
and that buildings may have two such containers. Thus, the presence of
a heating oil container at a residence was generally not intended, by
itself, to trigger SPCC applicability since residences generally do not
have significant quantities of other types of oil. However, at the time
the rule was originally promulgated, the Agency did not consider
residential heating oil containers that may be co-located with
businesses. As a result, EPA recognizes that owners and operators may
be counting these residential containers in determining the
applicability of the SPCC rule to their facility, and including these
containers in their SPCC Plans. Therefore, EPA proposes to amend the
rule to exempt single-family residential heating oil containers.
    This exemption would apply to aboveground as well as completely
buried heating oil tanks at single-family residences. Heating oil tanks
used for on-site consumptive use of oil are specifically exempted from
the 40 CFR part 280 requirements, which apply to underground storage
tanks (USTs). The SPCC rule does not apply to ``any completely buried
storage tank * * * that is subject to all of the technical requirements
of part 280 of this chapter or a State program approved under part 281
of this chapter * * * '' (Sec.  112.1(d)(4)). Because USTs used for
storing heating oil for consumptive use on the premises where stored
are exempted from part 280, completely buried tanks used for
residential heating would currently need to be included in the storage
capacity of an SPCC-regulated facility, and would be subject to
applicable SPCC requirements.
1. Exemption for Residential Heating Oil Containers
    EPA is proposing to specifically exempt from SPCC applicability
containers that are used to store oil for the sole purpose of heating
single-family residences (including residences at a farm) by adding a
new paragraph (9) under the general applicability section, Sec.
112.1(d). EPA also proposes to modify Sec.  112.1(d)(2) so that the
capacity of single-family residential heating oil containers would not
be counted toward facility oil storage.
    The current proposal would remove from SPCC applicability
containers (both aboveground and completely buried) located at single-
family residences that are used solely to store heating oil used to
heat the residence. Under the proposed amendments, the owner or
operator would not count any residential heating oil container as part
of the facility's aggregate storage capacity for the purpose of
determining SPCC applicability, and no SPCC requirements would apply to
the exempted containers. The SPCC requirements would continue to apply,
however, to containers for oil used to heat other non-residential
buildings within a facility, because the exemption covers only
residential heating oil containers.
    This exemption is not limited to facilities with only one single-
family home; EPA recognizes that there may be multiple single-family
homes within one facility. For example, a farm that has multiple
single-family homes within its boundaries would not need to consider
the residential heating oil tanks at any of those homes for purposes of
SPCC applicability. Groups of single-family homes within a military
base would similarly be exempted.
    EPA requests comment on this proposed exemption for single-family
residential heating oil containers, and whether there is a better way
to characterize containers used to store oil for heating buildings with
a residential, rather than commercial, use, including whether there are
any unique situations in which a residential heating oil tank would be
subject to the SPCC rule because the aboveground oil storage capacity
is greater than 1,320 U.S. gallons. Any alternative approach presented
must include an appropriate rationale in order for the Agency to be
able to consider it for final action.
2. Alternative Option Considered: Exemption for Residential Heating Oil
Containers Only at Farms
    EPA initially considered providing an exemption only for
residential heating oil containers located at farms, because farms
commonly include, within the geographical confines of the facility, the
residence of the farmer. Under this option, only heating oil containers
associated with residences on farms would benefit from an exemption
from the SPCC rule. However, EPA understands that a facility associated
with another industry sector, such as a military base or university, or
a small business run out of the owner's home, may also contain a
residential heating oil container. The Agency determined that there was
no rationale to support not expanding the exemption to all residential
heating oil containers. Therefore, the Agency chose not to propose this
option.
    EPA requests comment on this option, and whether an exemption for
residential heating oil containers should be limited to any specific
sector. Any alternative approach presented must include an appropriate
rationale in order for the Agency to be able to consider it for final
action.

D. Definition of Facility

    EPA first defined both ``facility'' and ``production facility'' at
Sec.  112.2 in the July 2002 amendments to the SPCC rule (67 FR 47042,
July 17, 2002). ``Facility'' is defined as: ``any mobile or fixed,
onshore or offshore building, structure, installation, equipment, pipe,
or pipeline (other than a vessel or a public vessel) used in oil well
drilling operations, oil production, oil refining, oil storage, oil
gathering, oil processing, oil transfer, oil distribution, and waste

treatment, or in which oil is used, as described in Appendix A of this
part. The boundaries of a facility depend on several site-specific
factors, including, but not limited to, the ownership or operation of
buildings, structures, and equipment on the same site and the types of
activity at the site.'' ``Production facility'' is defined as ``all
structures (including but not limited to wells, platforms, or storage
facilities), piping (including but not limited to flowlines or
gathering lines), or equipment (including but not limited to workover
equipment, separation equipment, or auxiliary non-transportation-
related equipment) used in the production, extraction, recovery,
lifting, stabilization, separation or treating of oil, or associated
storage or measurement, and located in a single geographical oil or gas
field operated by a single operator.''
    Since the July 2002 amendments were published, members of the
regulated community have asked EPA which of these definitions governs
the term ``facility'' as it is used in the applicability determination
of the Facility Response Plan requirements under Sec.  112.20(f)(1)
when applied to an oil production facility. In May 2004, EPA issued a
Federal Register notice clarifying this issue (69 FR 29728, May 20,
2004). Specifically, section 112.20(f)(1) describes the applicability
of the Facility Response Plan (FRP) rule by setting the criteria for
determining whether a ``facility could, because of its location,
reasonably be expected to cause substantial harm to the environment * *
*'' [emphasis added]. Members of the regulated community were concerned
that the language in the definition of production facility (``located
in a single geographical oil or gas field'') would require aggregation
of oil production structures and equipment in such a way that would
trigger the applicability of the FRP rule. However, as stated in the
May 2004 Federal Register notice (69 FR 29728), because Sec.
112.20(f)(1) consistently uses the term ``facility,'' not ``production
facility,'' it is the definition of ``facility'' in Sec.  112.2 that
governs who is subject to Sec.  112.20(f)(1), regardless of the
specific type of facility. Thus, consistent with the May 2004 notice,
the definition of ``facility'' governs the meaning of facility as it is
used in Sec.  112.20(f)(1), and accordingly, EPA is now proposing to
amend the definition of facility to add language clarifying this point.
    Industry sectors, including farms, military bases and other large
government facilities (e.g., national parks), airports, and
universities also have raised concerns over how to aggregate or
separate containers, buildings, structures, installations, equipment,
and piping for the purpose of SPCC applicability. Regulated community
members have expressed concern that non-contiguous oil-handling areas
with similar purposes or ownership are required to be aggregated
together as one ``facility'' to calculate total oil storage and
determine SPCC applicability. A farmer, for example, often has multiple
fuel storage sites on land under his management, which may include
owned and leased tracts. A USDA study shows that among farmers
surveyed, satellite fuel storage sites were an average distance of 4.1
miles from the main site (U.S. Department of Agriculture, ``Fuel/Oil
Storage and Delivery for Farmers and Cooperatives.'' March 2005).
    EPA believes that the existing definition of ``facility'' provides
considerable flexibility, and that the extent of a facility depends on
site-specific circumstances. The SPCC Guidance for Regional Inspectors
(version 1.0, November 28, 2005) describes factors that may be
considered relevant in delineating the boundaries of a facility for
SPCC purposes. Those factors may include, but are not limited to:
ownership, management, or operation of the containers, buildings,
structures, equipment, installations, pipes, or pipelines on the site;
similarity in functions, operational characteristics, and types of
activities occurring at the site; adjacency; or shared drainage
pathways. Consistent with this approach, EPA is proposing to amend the
definition of facility to clarify that contiguous or non-contiguous
buildings, properties, parcels, leases, structures, installations,
pipes, or pipelines may be considered separate facilities.
    For further clarity, EPA is also proposing to amend the definition
of ``production facility,'' as discussed in Section L of this notice.
1. Proposed Revisions to the Definition of Facility
    EPA is proposing to amend the definition of ``facility,'' as found
in Sec.  112.2, in three ways: To clarify that this definition alone
governs applicability of 40 CFR part 112; to clarify that contiguous or
non-contiguous buildings, properties, parcels, leases, structures,
installations, pipes, or pipelines may be considered separate
facilities; and to add the qualifier ``oil'' before the term ``waste
treatment.''
    To address concerns over whether the definition of ``facility'' or
the definition of ``production facility'' controls the term
``facility'' as it is used in Sec.  112.20(f)(1) when applied to an oil
production facility, EPA is proposing to add the following sentence to
the end of the definition of ``facility'': ``Only this definition
governs whether a facility is subject to this part.'' This language is
consistent with the clarification printed in a May 2004 Federal
Register notice (69 FR 29728). The definition of ``production
facility'' is used to determine which specific provisions of the rule
may apply at a particular facility (e.g., Sec.  112.9), in addition to
the administrative and general rule requirements.
    The Agency seeks comments on whether the proposed revision of the
definition of ``facility'' to clarify that this definition governs
applicability of part 112 is appropriate. Any suggestions for
alternative language to amend the definition must include an
appropriate rationale in order for the Agency to be able to consider it
for final action.
    To address concerns over how oil containers and equipment can be
separated or aggregated for the purposes of determining facility
boundaries and applicability of the SPCC requirements, EPA proposes to
insert the following sentence into the definition of facility:
``Contiguous or non-contiguous buildings, properties, parcels, leases,
structures, installations, pipes, or pipelines under the ownership or
operation of the same person may be considered separate facilities.''
EPA also proposes to add the terms ``property,'' ``parcel,'' and
``lease'' to the list of terms mentioned in the first sentence of the
definition. EPA believes that adding these terms further distinguishes
the attributes that can be considered in determining facility
boundaries. These terms are intended to be those that are familiar to a
regulated community member, such as a farmer or oil production facility
owner, and are not meant to be exhaustive. EPA notes that an owner or
operator may not determine his facility boundary in such a manner as to
simply avoid applicability of the SPCC rule.
    The Agency seeks comments on whether the proposed revision to the
definition of ``facility'' to clarify that contiguous or non-contiguous
buildings, properties, parcels, leases, structures, installations,
pipes, or pipelines may be considered separate facilities is
appropriate. Any suggestions for alternative language to amend the
definition must include an appropriate rationale in order for the
Agency to be able to consider it for final action.
    Finally, EPA is proposing to amend the first sentence of the
definition of facility to add the qualifier ``oil'' before the term
``waste treatment.'' With this

amendment, EPA is clarifying that the term ``waste treatment'' refers
to oil waste treatment and not to treatment of any other type of waste
that may be generated. The Agency seeks comments on whether this
proposed modification is appropriate.
2. Determining the Components of a Facility: Examples of Aggregation or
Separation
    The list of factors for determining the boundaries of a facility in
the definition of facility are not exclusive, but are merely examples.
The SPCC Guidance for Regional Inspectors (version 1.0, November 28,
2005) elaborates on what other factors may be considered. As noted
above, those factors may include, but are not limited to: ownership,
management, or operation of the containers, buildings, structures,
equipment, installations, pipes, or pipelines on the site; similarity
in functions, operational characteristics, and types of activities
occurring at the site; adjacency; or shared drainage pathways.
    EPA provides the following example scenarios of how a facility
owner or operator may determine what is considered a ``facility'' for
the purposes of an SPCC Plan. Each of these scenarios is purely
hypothetical and is not intended to provide a policy interpretation for
any specific existing facility.
a. Separation of Tracts at a Farm
    A farmer has one central fueling location and ten separate (either
contiguous or non-contiguous) tracts of land (inclusive of owned and
leased tracts) where various types of crops are grown. The central
fueling location has several oil containers, with an aggregate storage
capacity of 5,000 gallons of diesel fuel, gasoline, and hydraulic/
lubrication oils. Each tract has one 1,000-gallon aboveground container
of diesel fuel, used for fueling only the equipment operated on the
tract. The tracts are located such that the containers are each several
miles from each other. The tracts each produce various types of crops,
and thus the equipment is operated seasonally according to crop type
and irrigation needs.
    The farmer determines that, given the distance between containers,
and the clear distinction between the operations that they support,
each tract and the central fueling location can be considered a
separate facility for the purposes of calculating oil storage capacity
and determining the applicability of the SPCC rule. The fact that the
tracts may be contiguous would be only one factor in the facility
determination, and may allow the designation of the separate contiguous
tracts as separate facilities, given the great distance and operational
differences. In this example, each tract does not individually meet the
aboveground storage capacity threshold for applicability of the SPCC
rule (1,320 gallons). Therefore, no SPCC Plan is required for these
containers. However, the central fueling location exceeds the SPCC rule
aboveground storage capacity threshold. Assuming the farm is located
such that a discharge of oil could reasonably pose a threat to
navigable waters or adjoining shorelines, the farmer must prepare and
implement an SPCC Plan for the central fueling area.
    To provide general protection and prevention measures against an
oil discharge, the farmer has the option to include the oil containers
on the separate tracts in his Plan. Under Section 311(b)(3) of the
Clean Water Act, the farmer would still be liable for any harmful
quantities of oil discharged from the containers on the separate tracts
into navigable waters or adjoining shorelines, even if an SPCC Plan is
not required.
b. Separation of Parcels at an Oil Production Facility
    An oil production facility operator leases the right to extract oil
from three parcels of land separated by large distances within one oil
production field. The parcels can be contiguous or non-contiguous. Each
of the parcels is subject to a distinct lease agreement, consistent
with all applicable state and local oil and gas laws and regulations.
Each parcel contains a tank battery and a single or several wellheads.
The operator determines that, given their geographic separation and
individual lease agreements, each parcel can be considered a separate
facility. Each tank battery stores a total aboveground capacity of oil
greater than 1,320 gallons, so the operator prepares and implements a
separate SPCC Plan for each tank battery and its associated wellheads,
flowlines, and associated equipment, as individual facilities. Any
gathering lines that transport oil from these individual facilities
into a centralized collection area involve the transportation of oil
between facilities (``inter-facility'') and are therefore not within
EPA jurisdiction. These ``inter-facility'' gathering lines do not need
to be included in the SPCC Plans.
    Because the definition of facility is flexible, the operator could
alternatively choose to consider all three parcels as one facility,
based on his common ownership or operation of all of them. Under this
approach, the operator would only need to prepare one SPCC Plan that
covers the components of all parcels. Any gathering lines connecting
the tank batteries of each parcel are then considered ``intra-
facility'' gathering lines and must be included in the SPCC Plan (see
section L.2 of this preamble). It is also important to note that if an
owner/operator aggregates oil storage so as to develop one SPCC Plan,
he must then determine the facility boundaries the same way for the
purposes of applicability of the FRP rule requirements.
    Additionally, a production facility may consist of parcels that are
smaller or larger than an individual lease.
c. Aggregation of Equipment at an Oil Production Facility
    An oil production facility owner operates one wellhead. Oil is
treated in an 800-gallon capacity heater-treater to separate the oil
from produced water; the treated oil is then stored in several stock
tanks until it is sold and transported off-site. The heater-treater
separation equipment is located several feet away from the stock tanks,
which hold both the oil and produced water. These two areas may be
physically separate and are protected by separate secondary containment
berms, but the heater-treater is an integral component of an oil
production facility, connected by piping, and under the control of the
same operator. The separation equipment, such as a heater-treater, is a
component of a larger process that would be incomplete without the
ability to separate oil and produced water. Thus, all of these
components should be aggregated together to comprise the oil production
facility. In this circumstance, EPA does not believe the heater-treater
should be considered a separate facility.
    As another related example, an oil production facility owner
operates one wellhead connected to the tank battery by a mile-long
flowline. Despite the length of the flowline, the facility operator may
not have a reasonable basis for separating the wellhead, flowline, and
tank battery as distinct facilities with individual SPCC Plans. Similar
to the heater-treater, the wellhead and tank battery are considered
integral components of the larger process, and an oil production
facility would be incomplete without including these two components.
The flowline, whether several feet or several miles in length, is a
necessary connection between the wellhead and tank battery, and all of
these components must be included in one SPCC Plan.

    An SPCC Plan must include all of the components that together
comprise a complete facility. There may be no reasonable basis to
determine that either of the facilities in these examples could be
divided into separate, smaller facilities. While a facility owner or
operator has some discretion in describing the parameters of his
facility, he may not describe the boundaries of a facility unreasonably
in an attempt to avoid regulation. EPA also notes that if an owner/
operator aggregates oil storage so as to develop one SPCC Plan, he must
then determine the facility boundaries the same way for the purposes of
applicability of the FRP rule requirements.
d. Separation of Areas at a Military Base
    A military base is spread out over 10 square miles. Within the
base, there are several areas where oil containers are located: A tank
farm associated with an aircraft fueling area, back-up fuel oil for a
small power generation plant, and a mess hall with several drums of
cooking oil. Because different groups service, manage, or maintain the
various tank farms and oil storage areas, these operators have agreed
to calculate the aggregate storage capacity of each of their operations
separately to determine their SPCC rule applicability. The operations
vary across these oil container locations, each with unique or specific
characteristics. Thus, the operators have decided that oil spill
prevention practices would be served best by preparing and implementing
multiple SPCC Plans. If the military determines that it would be more
efficient to prepare one SPCC Plan for the entire base, this would also
be appropriate.
    The same principles apply at other large facilities, such as a
university or airport. While a facility owner or operator has some
discretion in describing the parameters of his facility, he may not
describe the boundaries of a facility unreasonably to avoid regulation.
If an owner/operator aggregates oil storage so as to develop one SPCC
Plan, he must then determine the facility boundaries the same way for
the purposes of FRP rule applicability.
e. Separation of Functions at a Dual-purpose Facility
    The owner of a truck maintenance company operates his business from
a site that also includes his single-family residence. The business
office is located in his residence. In an adjacent garage, he has one
500-gallon gasoline container, one 250-gallon waste oil container, and
five 55-gallon drums of various automotive lubricants. The entire
building is heated with one 500-gallon heating oil container. In
considering whether he is subject to the SPCC rule, this business owner
concluded that the heating oil container is exempt from the rule,
because it is associated with his home, and the function of heating his
home is necessary regardless of the presence of his business
operations. The total storage capacity of the remaining containers does
not meet the aboveground storage capacity threshold for applicability
of the SPCC rule (1,320 gallons) and so the owner does not need to
comply with the rule requirements.
3. Alternative Options Considered
    In developing the amendments proposed in this notice, EPA
considered the following alternatives for addressing the definition of
facility:
a. No Action
    EPA considered taking no regulatory action regarding this issue.
However, given the significant number of questions and concerns that
have been raised by the regulated community, EPA believes that
addressing the definition of facility in some manner is necessary.
Therefore, EPA chose not to propose this ``no action'' option.
b. Address Only Through Guidance
    EPA considered providing guidance to address the regulated
community's concern over the definition of facility and which
definition governs the term ``facility'' as it is used in Sec.
112.20(f)(1) when applied to an oil production facility. EPA has
provided clarity already on the definition of facility in the SPCC
Guidance for Regional Inspectors (version 1.0, November 28, 2005) and
through a Federal Register Notice (69 FR 29728, May 25, 2004). Despite
these efforts, the regulated community continues to express concern.
EPA believes that a formal rule amendment will provide more clarity.
Therefore, EPA is not moving forward with the option to address this
rule solely through guidance. EPA does intend, however, to revise the
SPCC Guidance for Regional Inspectors to be consistent with any rule
amendment(s) finalized.
    The Agency welcomes comments on this or other alternatives that
could serve to address the needs of the regulated community, while at
the same time maintaining appropriate levels of environmental
protection. Any alternative approaches presented must include an
appropriate rationale in order for the Agency to be able to consider
them for final action.

E. Facility Diagram

    Section 112.7(a)(3) of the SPCC rule requires that a facility owner
or operator include in his SPCC Plan a facility diagram that identifies
the location and contents of oil containers, connecting piping, and
transfer stations. The diagram helps to ensure safe and efficient
response actions, effective spill prevention and emergency planning,
and proper implementation of the Plan by facility personnel. It also
assists the EPA inspector in reviewing the facility's SPCC Plan.
    The rule requires that the facility diagram include the location
and contents of each container, completely buried tanks (even if
exempted from the SPCC requirements), transfer areas (i.e., stations),
and connecting pipes. In addition to the requirement for a facility
description and diagram, Sec.  112.7(a)(3) lists additional items to be
addressed in an SPCC Plan, including the type of oil in each container
and its capacity; discharge prevention measures; discharge or drainage
controls; countermeasures for discharge discovery, response, and
cleanup; methods of disposal of recovered materials; and specific
contact information. The SPCC Guidance for Regional Inspectors (version
1.0, November 28, 2005) discusses the requirements for facility
diagrams in more detail.
    The facility diagram must include all containers (including oil-
filled equipment) that store 55 gallons or more of oil and must include
information indicating the contents of these containers (Sec.
112.7(a)(3)). The minimum container size addressed by the SPCC rule is
55 gallons. Any containers with an oil storage capacity of less than 55
gallons do not need to be included in the SPCC Plan.
    Regulated community members have raised the concern that
documenting the contents of all oil storage containers with a capacity
of 55 gallons or more on a facility diagram would be impractical due to
seasonal and market changes. EPA acknowledges these concerns, and
proposes to add flexibility to this requirement.
1. Proposed Revision to the Facility Diagram Requirement
    EPA proposes to amend Sec.  112.7(a)(3) to clarify that the
facility diagram must include all fixed (i.e., not mobile or portable)
containers. For any mobile or portable containers located in a certain
area of the facility, a facility owner or operator must mark that area
on the diagram where such containers are stored. He may mark the number
of

containers, contents and capacity of each container either on the
facility diagram, or provide a separate description in the SPCC Plan.
If the total number of mobile or portable containers changes on a
frequent basis, the owner or operator can indicate an estimate in the
Plan of the number of containers, the anticipated contents and
capacities of the mobile or portable containers maintained at the
facility.
    Those oil storage containers that are located in a fixed position
(and do not move around the facility) must be represented on the
facility diagram, as currently required. In situations where diagrams
become complicated due to the presence of multiple oil storage
containers or complex piping/transfer areas at the facility, it may be
difficult to indicate the contents and capacity of the containers on
the diagram itself. In order to simplify the diagram, the owner or
operator may choose to include that information separately in the SPCC
Plan in an accompanying table or key.
    The proposed revision to the rule language would simplify the
process for developing a facility diagram by allowing for a general
description of the location and contents of mobile or portable oil
storage containers (e.g., drums and totes) rather than representing
each container individually. Under this proposal, the owner or operator
could identify an area on the facility diagram (e.g., a drum storage
area) and include a separate description of the total number of
containers, capacities, and contents in the Plan or reference facility
inventories that can be updated by facility personnel. As currently
required in Sec.  112.7(a)(3)(i), an owner or operator is required to
list all of the containers in the facility in the SPCC Plan. Under the
current proposal, EPA would modify Sec.  112.7(a)(3)(i) to allow the
owner or operator to provide an estimate of the potential number of
mobile or portable containers, types of oil, and anticipated capacities
in the Plan. This clarification may be particularly useful when the
number of containers change frequently at the facility. Thus, the Plan
should include a reasonable estimate of the number of containers
expected to be stored in the area and the capacity of the containers.
This estimate can be used to determine the applicability of the rule
thresholds and provide a general description of the mobile/portable
containers in the Plan.
    Mobile or portable containers should be marked on the facility
diagram in their out-of-service or designated storage area or where
they are most frequently located, such as a warehouse drum storage
area. The facility owner/operator or certifying PE may determine how
best to represent mobile/portable containers on the facility diagram,
such as by including a descriptive table or indicating primary storage
areas. A descriptive table or key would complement the facility diagram
and the SPCC Plan by providing further information on the location and
contents of mobile and portable containers.
    A mobile or portable oil storage container is still subject to the
sized secondary containment requirements of the SPCC rule. Sections
112.8(c)(11) and 112.12(c)(11) require that a mobile or portable oil
storage container (other than a mobile refueler) be positioned or
located to prevent a discharge as described in Sec.  112.1(b). The
mobile or portable container must have a secondary means of
containment, such as a dike or catchment basin, sufficient to contain
the capacity of the largest single compartment or container with
sufficient freeboard to contain precipitation. This area can be
identified on the facility diagram.
    A facility diagram prepared for a state or federal plan or for
other purposes (construction permits, facility modifications, or other
pollution prevention requirements) may be used in an SPCC Plan if it
meets the requirements of the SPCC rule. Additionally, changes to the
facility diagram are considered administrative in nature and do not
require PE certification.
    The Agency seeks comments on this proposed option or any other
approach to revising to the facility diagram requirement at Sec.
112.7(a)(3) to address how mobile/portable containers should be marked
on a facility diagram. Any suggestions for alternative approaches must
include an appropriate rationale and supporting data in order for the
Agency to be able to consider it for a final action.
2. Indicating Complicated Areas of Piping or Oil-Filled Equipment on a
Facility Diagram
    A facility diagram must also include all transfer stations and
connecting pipes (Sec.  112.7(a)(3)). Associated piping and oil-filled
manufacturing equipment present at an SPCC-regulated facility may be
difficult to clearly present on a facility diagram, due to their
relative location, complexity, or design. EPA requests comment on
whether a rule revision is appropriate to provide further clarification
on how complicated areas of piping or oil-filled equipment may be
indicated on the facility diagram. As stated in the SPCC Guidance for
Regional Inspectors (version 1.0, November 28, 2005), EPA allows
flexibility in the way the facility diagram is drawn--an owner or
operator may represent such systems in a less detailed manner on the
facility diagram, as long as more detailed diagrams of the systems are
maintained at the facility and referenced on the diagram. As described
in the SPCC guidance document, the scale and level of detail shown on a
facility diagram may vary according to the needs and complexity of the
facility. For example, simplified schematic representations of piping
combined with a description in the Plan may be sufficient. Similar to
the approach described above for mobile/portable equipment, a facility
owner or operator may indicate in the diagram an area where complicated
oil-filled equipment is located and provide a table in the Plan
describing the type(s) of equipment and oil storage capacities.
    Any suggestions for alternative approaches must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for final action.

F. Loading/Unloading Racks

    Tank car and tank truck loading/unloading racks are subject to
specific requirements in Sec.  112.7(h), including sized secondary
containment requirements. Although the term ``rack'' is referred to in
the title of the provision, the rule text refers to ``loading/unloading
area.'' In response to concerns expressed by the regulated community
over how broadly this provision applies (whether to all areas where oil
is loaded or unloaded, or only to areas with a designated loading or
unloading rack), the Agency in May 2004 issued a Federal Register
notice clarifying that the provision only applies at areas of a
regulated facility where a loading or unloading rack is located (69 FR
29728, May 25, 2004). If a facility does not have a loading or
unloading ``rack,'' Sec.  112.7(h) does not apply. To provide further
clarification, in the SPCC Guidance for Regional Inspectors (version
1.0, November 28, 2005), EPA provided a set of characteristics that
describe the type of equipment typically associated with a loading or
unloading rack. To provide additional clarity and certainty to the
regulated community, EPA is now proposing a definition for the term
``loading/unloading rack,'' which would govern whether a facility is
subject to Sec.  112.7(h). Under this proposal, the requirements
described at Sec.  112.7(h) would only apply to areas of a regulated
facility where a loading/unloading rack, as would be defined in Sec.
112.2, is located.

    A loading/unloading rack can be located at any type of facility;
however, the loading and unloading areas associated with oil production
tank batteries and farms generally do not have the equipment meeting
the proposed definition of loading/unloading rack. Therefore, EPA is
proposing a specific exclusion for oil production facilities and farms
from the requirements at Sec.  112.7(h).
1. Proposed Loading/Unloading Rack Definition
    The proposed definition for ``loading/unloading rack'' is based on
the set of characteristics that generally describes loading/unloading
racks, as presented in the SPCC Guidance for Regional Inspectors
(version 1.0, November 28, 2005). In developing this description, EPA
considered existing definitions of the term ``loading rack'' or related
terms, as found in industry, Federal, state, or international
references. Based on this review, EPA is proposing to use the
definition (with certain changes) developed by the American Petroleum
Institute (API).\2\ Specifically, we removed language on frequency of
use, various components, and the limitation to the types of facilities
at which a rack could be located. EPA modified this definition in order
to accommodate racks found among the broader universe of facilities
subject to the SPCC rule. For this proposal, the guidelines presented
in the guidance document were modified to reflect additional research
on the equipment typically associated with racks and to remove several
ambiguous terms and phrases (See EPA's Analysis of Loading and
Unloading Rack Requirement (40 CFR part 112), August 31, 2007).
---------------------------------------------------------------------------

    \2\ American Petroleum Institute, October 18, 2002. Letter to
David Lopez, Director, EPA Oil Program Center.
---------------------------------------------------------------------------

    EPA is proposing the following definition for ``loading/unloading
rack'' under Sec.  112.2: ``Loading/unloading rack means a structure
necessary for loading or unloading a tank truck or tank car, which is
located at a facility subject to the requirements of this part. A
loading/unloading rack includes a platform, gangway, or loading/
unloading arm; and any combination of the following: piping
assemblages, valves, pumps, shut-off devices, overfill sensors, or
personnel safety devices.'' The Agency believes this proposed amendment
will provide clarity as to the applicability of the Sec.  112.7(h)
requirement by providing a specific definition for a loading/unloading
rack.
    In developing this proposed definition, EPA considered whether to
differentiate between ``loading'' and ``unloading'' racks. Generally,
loading involves oil transfer from a bulk storage container into the
tank car/truck, whereas unloading involves oil transfer from the tank
car/truck into a bulk storage container. Although racks are more
commonly used for loading activities, there are instances in which
unloading of oil also occurs at a rack, and, in some cases, using the
same equipment. The similarity of equipment and activities suggests
that EPA should not differentiate between loading and unloading racks
nor eliminate the term ``unloading rack'' altogether. This approach is
consistent with correspondence received from the regulated community on
this issue. For example, in an October 2003 letter to EPA, the American
Petroleum Institute (API) suggested a definition for rack that includes
both loading and unloading activities (see the docket for this proposed
rulemaking for the complete letter).
    EPA understands that a loading/unloading rack is typically designed
to meet the needs of an individual facility, and thus a single
definition that captures all potential variations of the components
presents a challenge. However, discussions with manufacturers of
loading/unloading racks suggest that there is some commonality among
the basic structural components of a typical ``rack.'' Thus, each of
the specific components listed in the proposed definition were included
because they are common characteristics of loading or unloading racks.
    Loading arms are an essential component of both top and bottom
loading. By including the generic term ``loading/unloading arms,'' EPA
intends the proposed definition to be applicable to all loading
approaches, including top, side, and bottom loading. The National
Institute of Standards and Technology (NIST) (Loading-Rack Meters
Presentations, Chapter 2: Introduction to Loading Rack Metering
Systems, Revised August 2000) indicates that loading racks are designed
to fill receiving tanks either from the top, side or bottom. Although
top loading is common, bottom loading is increasingly used to load/
unload tank cars and trucks.
    Platforms offer structural bases to a loading rack and are typical
of both top and bottom loading. Platforms are often found in
conjunction with additional components (e.g., gangways), whereas
bottom-loading operations that do not require access to the top of a
tank are sufficient with only a platform component.
    Gangways are primarily found on loading racks that accommodate top
loading operations. However, it is not uncommon for bottom loading
operations to include gangways to access the top of the rack structure
or receiving container during loading operations for the purposes of
sampling, testing overfill or other safety equipment, or for pressure
venting operations.
    Piping assemblages, valves, pumps, shut-off devices, overfill
sensors, and personnel safety devices are examples of typical
accessories of a loading/unloading rack, but may not be part of the
rack structure itself.
    The Agency seeks comment on the proposed definition of ``loading/
unloading rack'' or if there are any other definitions for ``loading/
unloading rack'' that would be more suitable.
    Comments providing a description of a ``loading/unloading arm'' may
also provide useful information for EPA to consider in determining a
final action. Any alternative definition presented must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for final action.
2. Requirements for Loading/Unloading Racks
    Although the title of Sec.  112.7(h) refers to ``loading/unloading
rack,'' the text of the requirement refers to ``loading/unloading
areas.'' Therefore, to provide additional clarity, EPA proposes to
change all references from loading/unloading ``area'' to loading/
unloading ``rack.'' For example, Sec.  112.7(h)(1) would be modified as
follows: ``Where loading/unloading rack drainage does not flow into a
catchment basin or treatment facility designed to handle discharges,
use a quick drainage system for tank car or tank truck loading/
unloading racks. You must design any containment system to hold at
least the maximum capacity of any single compartment of a tank car or
tank truck loaded or unloaded at the facility.'' Section 112.7(h)(2)
would be similarly modified and includes a technical correction of the
word ``break'' to ``brake'' to correct a typographical error.
    The modification to change the word ``area'' to ``rack'' in Sec.
112.7(h) is consistent with EPA's notice in the Federal Register in May
2004, which noted that the application of Sec.  112.7(h) only applies
to facilities with loading and unloading ``racks'' (69 FR 29728, May
25, 2004). EPA also clarified, in a letter to the Petroleum Marketers
Association of America, that loading and unloading activities that take
place beyond the rack area are not subject to

the requirements of Sec.  112.7(h), but are subject, where applicable,
to the general secondary containment requirements of Sec.  112.7(c)
(Letter to Daniel Gilligan, President, Petroleum Marketers Association
of America, from Marianne Lamont Horinko, Assistant Administrator,
Office of Solid Waste and Emergency Response, EPA, May 25, 2004).
    In the preamble to the July 2002 amendments to the SPCC rule, EPA
stated that Sec.  112.7(h) ``applies to containers which are
aboveground (including partially buried tanks, bunkered tanks, or
vaulted tanks) or completely buried (except those exempted by this
rule)'' (67 FR 47110, July 17, 2002). This means that Sec.  112.7(h)
does not apply to a loading/unloading rack associated with a container
that is exempted from the rule, such as an underground storage tank
(UST) that is subject to all of the technical requirements of 40 CFR
part 280 or a State program approved under part 281. EPA is
reconsidering this position, because a transfer to or from such a
container at an SPCC-regulated facility is a potential source of a
discharge of oil into navigable waters or adjoining shorelines.
Additionally, since a loading/unloading rack associated with the UST is
not typically part of the UST system, it is not subject to all of the
technical requirements of 40 CFR part 280 or 281, and is therefore
regulated under SPCC in the same manner as any other transfer equipment
or transfer activity located at an otherwise regulated SPCC facility.
    In the preamble to the December 2006 amendments, EPA noted that
although the amendment provided an exemption for motive power
containers, the oil transfer activities to or from motive power
containers occurring within an SPCC-regulated facility continue to be
regulated (71 FR 77283, December 26, 2006). Consistent with the
preamble to the December 2006 amendments, the Agency is clarifying that
at an SPCC-regulated facility, Sec.  112.7(h) (including the sized
secondary containment provision) applies to transfers at any loading/
unloading rack associated with any type of container, including one
that is exempted from the rule, as long as the loading/unloading rack
meets the definition proposed in this notice. A transfer not associated
with a loading or unloading rack is subject to the general secondary
containment provision at Sec.  112.7(c). The Agency believes that no
rule change is needed to clarify this point, because a rule amendment
to exempt a loading/unloading rack associated with a UST was never
proposed or finalized.
    The Agency seeks comments on the proposed modifications to the
provision at Sec.  112.7(h), and how EPA regulates the transfers to or
from completely buried tanks subject to all of the technical
requirements under 40 CFR part 280 or part 281, or if there are any
other modifications that would be more suitable. Any alternative
approach presented must include an appropriate rationale and supporting
data in order for the Agency to be able to consider it for final
action.
3. Exclusions
    EPA is proposing to exclude onshore oil production facilities and
farms from the loading/unloading rack requirements at Sec.  112.7(h).
The provision currently excludes all offshore facilities. EPA
understands that there are extremely few, if any, loading/unloading
racks at oil production facilities. Similarly, EPA understands that
farm oil and fuel dispensing equipment is generally not associated with
loading/unloading racks. Oil transfer areas, such as loading/unloading
areas, at farms and oil production facilities that are subject to the
SPCC rule remain subject to the general secondary containment
requirements of Sec.  112.7(c).
    EPA understands that there may be other facilities or industry
sectors that are involved in the transfer of oil, but do not have a
structure that meets the definition of ``loading/unloading rack'' as
proposed in this notice. EPA is proposing to exclude onshore oil
production facilities and farms from Sec.  112.7(h), because the Agency
is specifically aware that these types of transfer equipment are not
typically associated with these types of facilities. EPA does not want
to create any confusion for owners/operators associated with oil
production facilities and farms, and for the purpose of clarity, is
exempting them. At other facilities that do not have a loading/
unloading rack, the provisions at Sec.  112.7(h) similarly do not
apply. As EPA stated in the SPCC Guidance for Regional Inspectors
(version 1.0, November 28, 2005), ``Areas where oil is transferred but
no loading or unloading rack is present are subject to Sec.  112.7(c),
and thus appropriate containment and/or diversionary structures are
required. EPA does not require specifically sized containment for
transfer areas; however, containment size must be based on good
engineering practice.''
    The Agency seeks comment on whether the proposed exclusion for
onshore oil production facilities and farms from the loading/unloading
rack requirements is necessary, or whether the proposed definition of
the term ``loading/unloading rack'' would provide sufficient clarity as
to the applicability of Sec.  112.7(h) at oil production facilities and
farms. Any suggestions for alternative approaches must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for a final action.
4. Alternative Option Considered: No Action
    EPA considered not providing any amendments to the SPCC rule
related to loading/unloading racks. Under this approach, EPA would not
provide a regulatory definition for loading/unloading rack or an
exclusion for farms and oil production facilities, but would instead
continue to follow the interpretation of loading/unloading rack as
stated in the SPCC Guidance for Regional Inspectors and the May 2004
Federal Register notice. EPA chose not to move forward with this ``no
action'' option because it would not address the ambiguity of the
loading/unloading rack requirement as it currently stands.
    The Agency seeks comment on whether there are any other alternative
options that should be reviewed further by EPA prior to issuing a final
action. Any suggestions for alternative options must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for a final action.

G. Tier I Qualified Facilities

    In December 2005 (70 FR 73524, December 12, 2005), EPA proposed to
allow the owner or operator of a qualified facility to self-certify his
SPCC Plan (this proposal was finalized in December 2006 at 71 FR
77266). In the preamble to this 2005 proposal, EPA discussed an
alternative option that was developed in response to comments EPA
received following publication of a Notice of Data Availability (NODA)
for facilities that handle oil below a certain threshold amount (69 FR
56182, September 20, 2004) and was based on an analysis submitted by
the Small Business Administration (SBA) Office of Advocacy. This
``multi-tiered approach'' was based on the total storage capacity of a
facility, as follows:
     Tier I would include facilities that have between 1,321
and 5,000 gallons of total oil storage capacity. These facilities would
not need a written SPCC Plan (and therefore no PE certification would
be needed), but would have to adhere to all other SPCC requirements.
     Tier II would include facilities having between 5,001 and
10,000 gallons of total oil storage capacity.

These facilities would be required to have a written SPCC Plan, but the
Plan would not need to be certified by a PE, and a PE site visit would
not be required. Standardized Plans could be adopted by a facility
conforming to standard design and operating procedures, without
requiring PE certification.
     Tier III would include the remaining SPCC-regulated
facilities with total oil storage capacities greater than 10,000
gallons. These facilities would be required to have a written SPCC Plan
certified by a PE.
    As described in its December 2006 final rule (71 FR 77266, December
26, 2006), EPA did not adopt this suggested multi-tiered structure
approach because the Agency believes that a facility cannot effectively
implement an oil spill prevention program, or any other program
(business or otherwise), without documentation of that program's action
items, such as in a written Plan. However, the Agency did finalize at
that time requirements for one ``tier'' of qualified facilities to
prepare a self-certified SPCC Plan. The Agency understands the concerns
of small businesses, particularly of facilities with a smaller oil
storage capacity and likely more limited resources, of the potential
effort needed to develop a full Plan. Thus, the Agency is now exploring
the possibility of further streamlining the SPCC requirements for
certain qualified facilities that meet additional criteria.
    EPA proposes to amend the SPCC rule to provide an additional option
for an owner or operator of a qualified facility with a maximum
individual oil storage container capacity of 5,000 U.S. gallons to
complete and implement a streamlined, self-certified SPCC Plan template
(proposed as Appendix G to 40 CFR part 112), in order to comply with
the requirements of the SPCC rule. A qualified facility is one that
meets the qualifying criteria described in the December 2006 amendments
to the SPCC rule (71 FR 77266, December 26, 2006): a facility that has
an aggregate aboveground oil storage capacity of 10,000 U.S. gallons or
less; and has had no single discharge as described in Sec.  112.1(b)
exceeding 1,000 U.S. gallons or no two discharges as described in Sec.
112.1(b) each exceeding 42 U.S. gallons within any twelve-month period
in the three years prior to the SPCC Plan self-certification date, or
since becoming subject to 40 CFR part 112 if the facility has been in
operation for less than three years (this criterion does not include
discharges as described in Sec.  112.1(b) that are the result of
natural disasters, acts of war, or terrorism). For a more complete
discussion on these qualifying criteria, see the preamble to the
December 2006 SPCC rulemaking at 71 FR 77266.
    For clarity, EPA is now proposing the term ``Tier II qualified
facility'' to describe those qualified facilities as defined by and
subject to the requirements promulgated in the December 2006 SPCC
rulemaking at 71 FR 77266 and to propose the term ``Tier I qualified
facility'' for a new subset of these qualified facilities. EPA is
proposing that a Tier I qualified facility, in addition to meeting the
eligibility criteria for a Tier II qualified facility, also have no
individual oil storage containers with a capacity greater than 5,000
U.S. gallons in volume, as described below.
1. Eligibility Criteria
    As a subset of ``qualified facilities,'' Tier I qualified
facilities must meet all of the eligibility criteria finalized by EPA
in December 2006 (71 FR 77266), including reportable discharge history.
In the current action, EPA is proposing an additional criterion for
Tier I eligibility: a maximum individual oil storage container capacity
of 5,000 U.S. gallons.
    EPA has developed the proposed Tier I category based on an
operational characteristic, rather than a lower total facility storage
capacity threshold (as suggested by SBA), in order to link any
streamlined requirements with a reduced potential for oil discharge.
EPA proposes to set the maximum individual container capacity threshold
at 5,000 U.S. gallons because this volume is consistent with industry
consensus standards that call for varying levels of inspection
stringency based on container size and configuration. For example, the
Steel Tank Institute's SP001, Standard for the Inspection of
Aboveground Storage Tanks, allows for periodic visual inspection alone,
with no requirement for the inspector to be professionally certified,
for containers of 5,000 U.S. gallons or less that are equipped with a
spill control measure and a continuous release detection method.
Furthermore, a facility with smaller storage containers often has less
complicated operations, is typically an end-user of oil (does not
distribute the oil further), is involved in few oil transfers, and may
have predominantly mobile or portable containers with a few low-
capacity fixed oil storage containers. Smaller containers have a
smaller potential maximum discharge size, and there may be little or no
piping associated with these small containers.
    Determining the storage capacity for each oil storage container is
straightforward, so it should be relatively simple for a qualified
facility owner or operator to determine whether the facility meets this
criterion. An EPA inspector will be able to easily verify the storage
capacity for each container, and therefore confirm eligibility for Tier
I status as a qualified facility.
    This approach is similar to SBA's suggested Tier I eligibility
criterion of a 5,000-gallon aggregate facility storage capacity
threshold. However, by maintaining the higher facility capacity
threshold that applies for all qualified facilities (10,000 U.S.
gallons) and limiting the size of individual oil storage containers,
EPA proposes an option from which a greater number of facilities,
including those with a fluctuating oil storage capacity below 10,000
U.S. gallons, may benefit.
    To determine eligibility as either a Tier I or Tier II qualified
facility, only the aboveground oil storage capacity is considered.
However, a completely buried oil storage tank located at a qualified
facility is also regulated unless it is subject to all of the technical
requirements of 40 CFR part 280 or a State program approved under part
281. That is, if a facility is subject to the SPCC rule, then both
aboveground and completely buried oil storage containers located at the
facility are subject to the rule, unless specifically exempted from
applicability under Sec.  112.1(d).
    The Agency seeks comments on whether setting the criteria for Tier
I qualified facilities as a maximum individual oil container capacity
of 5,000 U.S. gallons appropriately addresses the concerns of
facilities with relatively smaller volumes of oil, while maintaining
the environmental protection intended by the regulation. Any
suggestions for alternative criteria, including alternate container
volume thresholds, must include an appropriate rationale and supporting
data in order for the Agency to be able to consider it for final
action.
2. Provisions for Tier I Qualified Facilities
    In lieu of preparing a full SPCC Plan that is PE- or self-
certified, EPA proposes that an owner or operator of a Tier I qualified
facility would have the option to complete the SPCC Plan template
proposed as Appendix G of 40 CFR part 112. The Plan template is
designed to be a simple SPCC Plan that includes only the requirements
that should apply to this lowest tier of regulated facilities. This
proposed rule streamlines requirements for Tier I qualified facilities
by eliminating and/or modifying several SPCC requirements (e.g.,
facility diagram (Sec.  112.7(a)(3)) and

certain provisions that generally do not apply to facilities that store
or handle smaller volumes of oil, such as requirements for transfers
taking place at loading racks (Sec.  112.7(h)).
    The list of applicable rule provisions for Tier I qualified
facilities is included as Sec.  112.6(a)(3) of this proposal. For an
owner or operator of a Tier I qualified facility completing the Plan
template included in Appendix G of this part, the following existing
requirements under Sec.  112.7 and in subparts B and C continue to
apply: facility description (Sec.  112.7(a)(3)(i), 112.7(a)(3)(iv),
112.7(a)(3)(vi), 112.7(a)(4), and 112.7(a)(5)); general secondary
containment (Sec.  112.7(c)); inspections, tests and records (Sec.
112.7(e)); personnel, training, and discharge prevention procedures
(Sec.  112.7(f)); security (Sec.  112.7(g)); qualified oil-filled
operational equipment (Sec.  112.7(k)); facility drainage (Sec. Sec.
112.8(b)(1), 112.8(b)(2), 112.12(b)(1), and 112.12(b)(2)); bulk storage
containers (Sec. Sec.  112.8(c)(1), 112.8(c)(3), 112.8(c)(4),
112.8(c)(5), 112.8(c)(6), 112.8(c)(10), 112.12(c)(1), 112.12(c)(3),
112.12(c)(4), 112.12(c)(5), 112.12(c)(6), and 112.12(c)(10)); piping
inspections (Sec. Sec.  112.8(d)(4) and 112.12(d)(4)); oil production
facility requirements(Sec.  112.9(b), 112.9(c), 112.9(d)(1),
112.9(d)(3), and 112.9(d)(4)); and requirements for onshore oil
drilling and workover facilities (Sec.  112.10(b), 112.10(c) and
112.10(d)). This list of requirements reflects a set of currently
existing requirements that apply to facilities subject to the SPCC
rule; EPA found no rationale to remove or modify these requirements for
Tier I qualified facilities. Additionally, as described below, EPA is
proposing a set of revised, or streamlined, requirements applicable to
Tier I qualified facilities in lieu of specific existing requirements.
a. Streamlined Provisions for Tier I Qualified Facilities
    EPA is proposing a set of revised requirements applicable to Tier I
qualified facilities in lieu of the specific existing requirements.
    In lieu of the full failure analysis requirements in Sec.
112.7(b), EPA proposes that an owner or operator of a Tier I facility
examine areas where there is a reasonable possibility for equipment
failure (such as where equipment is loaded or unloaded; where tank
overflow, rupture, or leakage is possible; or at the location of any
other equipment known to be a source of discharge) and include in the
Plan the total quantity of oil that could be discharged and a
prediction of the direction of flow. This proposed amendment removes
the requirement for an owner or operator of a Tier I facility to
predict the rate of flow that could result from an equipment failure.
This modified requirement is proposed as Sec.  112.6(a)(3)(i). EPA
believes this is appropriate because Tier I facilities will have only
containers less than 5,000 gallons and, additionally, usually have low
pressure pumps. In order to simplify completion of the SPCC Plan
template, EPA is removing the requirement for an owner/operator to
calculate the rate of flow that could result from an equipment failure.
    Currently, secondary containment requirements for mobile/portable
containers and all other bulk storage container requirements are
provided in separate provisions: Sec. Sec.  112.8(c)(2) and (c)(11) and
112.12(c)(2) and (c)(11). In lieu of these separate requirements, EPA
proposes to (1) combine mobile/portable container requirements with the
other bulk storage container requirements, and (2) eliminate the
requirement for containment to be ``sufficiently impervious.'' This
modified requirement is proposed as Sec.  112.6(a)(3)(ii). Combining
these requirements streamlines two similar provisions and simplifies
requirements for Tier I qualified facilities. Because EPA expects a
Tier I qualified facility to be a small, simple operation, with oil
storage containers that are inside buildings, inside pre-engineered
secondary containment, or double-walled, the requirement for
containment to be specifically designed as ``sufficiently impervious''
may be unnecessary. Furthermore, the requirement for secondary
containment to be capable of containing oil and constructed so that any
discharge will not escape the containment system before cleanup occurs
(Sec.  112.7(c)) still applies, and is similar in nature to the
``sufficiently impervious'' requirement. For the purposes of
simplicity, EPA would rely on the requirement in Sec.  112.7(c) to
adequately address Tier I qualified facilities.
    In lieu of Sec. Sec.  112.8(c)(8) and 112.12(c)(8), the overfill
prevention requirements, EPA proposes to require that an owner or
operator of a Tier I qualified facility ensure each container is
provided with a system or documented procedure to prevent overfills of
containers, and that containers are regularly tested to ensure proper
operation or efficacy. This modification provides more flexibility by
allowing the use of alternative methods to prevent container overfills,
rather than requiring an owner or operator to meet a prescribed set of
overfill prevention procedures. This modified requirement is proposed
as Sec.  112.6(a)(3)(iii). EPA believes this proposed flexibility is
warranted, because overfills can be prevented on smaller containers if
tanks are manually gauged and the transfer is constantly attended. In
order to comply with this requirement, a Tier I qualified facility
owner or operator simply needs to provide a relatively brief
description of the overfill prevention procedures in the SPCC Plan. The
description needs to provide only sufficient detail that would allow an
EPA inspector to understand how the owner/operator prevents overfills
of oil storage containers and how liquid level sensing devices are
tested.
    Elsewhere in this notice, EPA is proposing to extend the
streamlined security and integrity testing requirements that were
provided for qualified facilities in the December 2006 SPCC rule
amendment (71 FR 77266) to all facilities. Under this proposed
approach, both Tier I and Tier II qualified facilities would be subject
to the revised security (Sec.  112.7(g)) and integrity testing
(Sec. Sec.  112.8(c)(6) and 112.12(c)(6)) provisions.
b. Provisions Not Applicable to Tier I Qualified Facilities
    The following requirements are not included in the SPCC Plan
template because, for an end-use facility with a smaller oil storage
capacity and a simple configuration, these requirements are
inapplicable or unnecessary: facility diagram (Sec.  112.7(a)(3));
facility description (Sec.  112.7(a)(3)(ii), 112.7(a)(3)(iii)) and
112.7(a)(3)(v)); loading/unloading rack (Sec.  112.7(h)); brittle
fracture evaluation (Sec.  112.7(i)); facility drainage (Sec. Sec.
112.8(b)(3), 112.8(b)(4), 112.8(b)(5), 112.12(b)(3), 112.12(b)(4), and
112.12(b)(5)); monitoring internal heating coils (Sec. Sec.
112.8(c)(7) and 112.12(c)(7)), effluent treatment facilities
(Sec. Sec.  112.8(c)(9) and 112.12(c)(9)); and facility transfer
operations (Sec. Sec.  112.8(d)(1), 112.8(d)(2), 112.8(d)(3),
112.8(d)(5), 112.9(d)(2), 112.12(d)(1), 112.12(d)(2), 112.12(d)(3), and
112.12(d)(5)).
    Section 112.7(a)(3) Facility diagram. A qualified facility with no
individual container greater than 5,000 U.S. gallons in capacity is
typically small and generally simple in configuration. A facility
diagram is not needed to understand the facility layout and locate
areas of potential discharge at such facilities.
    Section 112.7(a)(3)(ii) Discuss discharge prevention measures
including routine handling of products (loading, unloading and facility

transfers). In order to simplify completion of the SPCC Plan template,
EPA proposes to remove the administrative provisions that require
discussion of oil handling at the facility. Smaller oil storage
capacity facilities tend to have fewer oil transfers, which are
generally conducted by an off-site oil distributor. Although the owner/
operator should be familiar with the routine oil-handling activities
and train employees on established procedures for oil handling, EPA
does not believe it is necessary to include a description of these
procedures in the SPCC Plan template.
    Section 112.7(a)(3)(iii) Discuss discharge or drainage controls
(e.g., secondary containment) and procedures. In order to simplify
completion of the SPCC Plan template, we have removed the requirement
to describe the facility drainage and secondary containment. Instead,
Section 2 of the Plan template includes a table for the owner or
operator to identify oil storage containers and the method of secondary
containment provided for each container. EPA believes this is
appropriate, considering the smaller volumes of oil stored or handled
at these facilities.
    Section 112.7(a)(3)(v) Discuss methods of disposal of recovered
materials. In order to simplify completion of the SPCC Plan template,
we have removed the requirement to discuss disposal methods for
recovered materials. However, the owner/operator is still obligated to
meet all local, state and Federal regulatory requirements for the
proper disposal of oil contaminated materials following an oil
discharge.
    Section 112.7(h) Facility tank car and tank truck loading/unloading
rack. Elsewhere in this notice, EPA is proposing a definition for the
term ``loading/unloading rack.'' Given the Tier I qualified facility
eligibility criteria, a Tier I qualified facility would be unlikely to
have a loading/unloading rack, as proposed to be defined in Sec.
112.2, because a Tier I qualified facility would not typically be
involved with oil distribution. Therefore, eliminating this requirement
is appropriate.
    Section 112.7(i) Brittle fracture evaluation. This requirement
applies to field-constructed, aboveground containers. Field-constructed
containers tend to be greater than 5,000 U.S. gallons in capacity;
under this proposal, a Tier I qualified facility would not have any
containers greater than 5,000 U.S. gallons in capacity. Therefore,
eliminating this requirement is appropriate.
    Sections 112.8(b)(3)-(b)(5) and 112.12(b)(3)-(b)(5) Facility
drainage requirements. A facility with a maximum individual container
storage capacity of 5,000 U.S. gallons is unlikely to have complicated
drainage systems. The purpose of drainage requirements listed in these
provisions is to provide further specification for when drainage
systems are used as secondary containment methods, and for how drainage
from diked containment areas should be accomplished. In a smaller
facility with less complicated operations, this additional
specification is not necessary.
    Sections 112.8(c)(7) and 112.12(c)(7) Requirements for monitoring
internal heating coils. A facility with smaller oil storage containers
is unlikely to have oil storage containers with heating coils due to
the type of operations conducted and the kind of oil commonly used at
such a facility. Therefore, eliminating this requirement is
appropriate.
    Sections 112.8(c)(9) and 112.12(c)(9) Effluent treatment facility
inspections. A facility with smaller oil storage containers generally
does not maintain an effluent treatment system. Therefore, eliminating
this requirement is appropriate.
    Section 112.8(d)(1) and 112.12(d)(1) Corrosion protection for
buried piping. A facility with smaller oil storage containers generally
does not maintain extensive or complicated buried piping systems.
Therefore, eliminating this requirement is appropriate.
    Sections 112.8(d)(2) and 112.12(d)(2), and 112.8(d)(3) and
112.12(d)(3) Capping or blank-flanging terminal connections and design
of pipe supports. A facility with smaller oil storage containers
generally does not maintain extensive or complicated piping systems,
and piping is generally limited in length and adjacent to buildings or
associated equipment. Therefore, eliminating this requirement is
appropriate.
    Section 112.8(d)(5) and 112.12(d)(5) Warn vehicles of aboveground
piping. A facility with smaller oil storage containers generally does
not maintain extensive or complicated piping systems that may be
impacted by vehicles entering or leaving the facility. Furthermore,
piping is generally limited in length and adjacent to buildings or
associated equipment. Therefore, eliminating this requirement is
appropriate.
    Section 112.9(d)(2) Inspect saltwater disposal facilities. EPA does
not expect there to be any saltwater disposal equipment generally
associated with an oil production facility that meets the criteria for
a Tier I qualified facility as described in this notice. Therefore,
eliminating this requirement is appropriate.
    EPA believes no further differentiation is warranted for onshore
oil production facilities in Sec.  112.9 and onshore oil drilling and
workover facilities in Sec.  112.10. An onshore oil production facility
that qualifies as a Tier I qualified facility will generally have the
same type of equipment as an oil production facility with larger oil
storage capacity (i.e., a wellhead with a pumpjack, flowlines, oil
separation equipment and oil storage and produced water containers) and
therefore, no further differentiation is warranted. An onshore drilling
or workover facility has three additional requirements under Sec.
112.10. The facility must: position or locate mobile drilling or
workover equipment so as to prevent a discharge as described in Sec.
112.1(b); provide catchment basins or diversion structures to intercept
and contain discharges of fuel, crude oil, or oily drilling fluids; and
install a blowout prevention (BOP) assembly and well control system
that is effective to control wellhead pressure. The presence of smaller
oil storage containers does not support differentiation of these
requirements, however, an onshore oil production, drilling or workover
facility that is eligible as a Tier I qualified facility will benefit
from the differentiated requirements under Sec.  112.7.
    EPA also believes that no further differentiation is warranted for
offshore drilling, production, and workover facilities subject to Sec.
112.11. Due to the nature of operations associated with these types of
facilities, they are not likely to meet the criterion of a maximum
individual container capacity of 5,000 U.S. gallons.
    The Agency notes that under the existing SPCC requirements, the
Regional Administrator (RA), after reviewing a facility's Plan, has the
authority under Sec.  112.4 to require an owner or operator of a
facility to amend the SPCC Plan if the RA finds that an amendment is
necessary to prevent and contain discharges from the facility. Such an
amendment may include requiring PE certification in accordance with
Sec.  112.3(d). Under this proposal, this provision would also apply to
Tier I qualified facilities. An RA could, if warranted, require a Tier
I qualified facility to prepare a full (i.e., not using the template)
SPCC Plan with PE certification.
    The Agency also notes that use of the Plan template approach would
be optional. Under this proposed rule, an owner or operator of a Tier I
qualified

facility could choose to prepare and implement either a full PE-