high viscosity oils, these AFVO containers are typically maintained at
elevated temperatures to keep the oil in the liquid state. The AFVO
could still spill, flow, and, depending on the location of the
facility, could potentially reach navigable waters or adjoining
shorelines.
    One commenter requested clarification as to whether the term ``oil
storage container'' included oil-filled operational equipment. To
clarify, the maximum individual oil storage container criterion applies
to any aboveground container at the facility that contains oil. This
includes bulk storage containers, such as tanks and mobile or portable
containers, oil-filled operational equipment (such as transformers),
and other oil-filled equipment, such as flow-through process equipment.
Thus, oil-filled operational equipment is eligible for Tier I status.
    EPA disagrees with the commenter suggesting that the criterion for
discharge history be more stringent, based on the fact that some
discharges result despite adherence to the SPCC Plan. EPA chose a
discharge history criterion similar to the reporting requirement in
Sec.  112.4(a) because a discharge smaller than what must be reported
to the EPA Regional Administrator (RA) under this section may result
from normal handling of oil at the facility and may not indicate a
recurring problem resulting from a deficiency in the Plan or improper
Plan implementation. Therefore, the RA would not likely require the
owner or operator to amend the Plan and the facility owner or operator
should be eligible to self-certify the SPCC Plan as a qualified
facility.
    EPA is not defining terrorism in the final rule. However, the
Agency notes that the Homeland Security Act of 2002 defines terrorism
as ``any activity that involves an act that is dangerous to human life
or potentially destructive of critical infrastructure or key resources;
and is a violation of the criminal laws of the United States or of any
state or other subdivision of the United States; and appears to be
intended to intimidate or coerce a civilian population, to influence
the policy of a government by intimidation or coercion or to affect the
conduct of a government by mass destruction, assassination, or
kidnapping.'' See Section 2(15), Homeland Security Act of 2002, Public
Law 107-296, 116 Stat. 2135 (2002). The Agency does not believe that
vandalism and sabotage are examples of terrorism. In the December 2006
amendments to the SPCC rule, EPA identified reportable discharges
caused by external factors beyond the control of the facility owner or
operator such as natural disasters, acts of war, or terrorism. The
Agency specifically excluded these events from consideration in the
reportable discharge history criterion for qualified facilities and
qualified oil-filled operational equipment. At that time, EPA excluded
sabotage and vandalism from the list of reportable discharge history
extreme events because these are not necessarily beyond the control or
planning ability of the facility owner or operator. (See 71 FR 77272,
December 26, 2006.) The security provisions in Sec.  112.7(g) require
consideration for acts of vandalism. The owner or operator of a
facility must describe in the Plan how he controls access to the oil-
handling, processing and storage areas and the appropriateness of
lighting to both prevent acts of vandalism and assist in the discovery
of oil discharges.
    Additionally, EPA is not changing the Tier II threshold and is not
amending the total aboveground oil storage capacity for Tier II
qualified facilities in this final rule as requested by some
commenters. The Agency maintains that the focus of the qualified
facilities alternative is on facilities with simple configurations and
small quantities of oil stored or handled. The Agency addressed the
eligibility criteria for the Tier II qualified facilities in the
December 2006 rulemaking. The Agency recognizes that regardless of the
threshold quantity selected, there are likely to be facilities just
above that threshold that will be excluded. To the extent that facility
owners or operators want to meet the criteria for a qualified facility,
they have the option of reducing oil storage capacity at their facility
by either removing containers from the facility inventory, or
permanently closing containers in accordance with Sec.  112.2.
    With regard to the commenter suggesting that the qualified
facilities approach does not benefit the oil and gas sector, EPA has
estimated that the Tier II approach does allow approximately 13 percent
of the smallest oil and gas production stakeholders to qualify to self-
certify their SPCC Plans based on oil storage capacities below 10,000
U.S. gallons. In addition, the Agency also is finalizing an alternative
set of criteria to qualify for Plan self-certification (Tier II)
specific for oil production facilities. See Section V.M of this
preamble for further discussion on the alternative criteria for the oil
and gas production sector.
2. Provisions for Tier I Qualified Facilities
    Under this amendment, in lieu of preparing a full SPCC Plan that is
PE-or self-certified, an owner or operator of a Tier I qualified
facility will have the option to complete the SPCC Plan template found
in Appendix G of 40 CFR part 112. The Plan template is designed to be a
simple SPCC Plan that includes only the requirements that apply to this
tier of regulated facilities. This final rule streamlines the
requirements for Tier I qualified facilities by eliminating and/or

modifying several SPCC requirements (for example, 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 in Sec.  112.6(a)(3). 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: (1) Introductory
paragraph of Sec.  112.7 \4\; (2) 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)); (3) general secondary containment (Sec.  112.7(c)); (4)
inspections, tests and records (Sec.  112.7(e)); (5) personnel,
training, and discharge prevention procedures (Sec.  112.7(f)); (6)
security (Sec.  112.7(g)); (7) qualified oil-filled operational
equipment (Sec.  112.7(k)); (8) facility drainage (Sec. Sec.
112.8(b)(1), 112.8(b)(2), 112.12(b)(1), and 112.12(b)(2)); (9) 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)); (10)
piping inspections (Sec. Sec.  112.8(d)(4) and 112.12(d)(4)); (11) oil
production facility requirements (Sec.  112.9(b), 112.9(c)(1),
112.9(c)(2), 112.9(c)(3), 112.9(c)(4), 112.9(c)(5), 112.9(d)(1),
112.9(d)(3), and 112.9(d)(4)); and (12) 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 basis to remove or modify these requirements for
Tier I qualified facilities. As described below, EPA is finalizing a
set of revised, or streamlined, requirements applicable to Tier I
qualified facilities in lieu of certain other existing requirements.
---------------------------------------------------------------------------

    \4\ In the proposal to this rule, EPA inadvertently omitted from
this list the introductory paragraph of Sec.  112.7, and for clarity
is including it now.
---------------------------------------------------------------------------

    In particular:
     In lieu of the full failure analysis requirements in Sec.
112.7(b), under new Sec.  112.6(a)(3)(i), an owner or operator of a
Tier I qualified facility must 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 amendment removes the requirement for an owner or operator of a
Tier I qualified facility to predict the rate of flow that could result
from an equipment failure.
     In lieu of the separate secondary containment requirements
in Sec. Sec.  112.8(c)(2) and (c)(11) and 112.12(c)(2) and (c)(11),
under new Sec.  112.6(a)(3)(ii), EPA is combining mobile/portable
container requirements with the other bulk storage container secondary
containment requirements, and eliminating the requirement for
containment to be ``sufficiently impervious.'' Because EPA expects a
Tier I qualified facility to be a small, simple operation, with oil
storage containers being inside buildings, inside pre-engineered
secondary containment, or a double-walled tank, the requirement for
containment to be specifically designed as ``sufficiently impervious''
is 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. Therefore, combining these requirements
streamlines two similar provisions and simplifies the requirements for
Tier I qualified facilities.
     In lieu of Sec. Sec.  112.8(c)(8) and 112.12(c)(8), the
overfill prevention requirements, under new Sec.  112.6(a)(3)(iii), the
owner or operator of a Tier I qualified facility must 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.
     As described elsewhere in this notice, EPA is extending
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. Both Tier I and Tier II
qualified facilities are subject to the revised security (Sec.
112.7(g)) and integrity testing (Sec. Sec.  112.8(c)(6) and
112.12(c)(6)) provisions.
    The following requirements are not included in the SPCC Plan
template because, for a facility with a smaller oil storage capacity or
other facilities with a simple configuration, these requirements are
inapplicable or unnecessary: (1) Facility diagram (Sec.  112.7(a)(3));
(2) facility description (Sec.  112.7(a)(3)(ii), 112.7(a)(3)(iii), and
112.7(a)(3)(v)); (3) loading/unloading rack (Sec.  112.7(h)); (4)
brittle fracture evaluation (Sec.  112.7(i)); (5) discussion of
conformance with 40 CFR part 112 or other applicable State discharge
prevention and containment regulations and guidelines (Sec.  112.7(j));
(6) 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)); (7)
monitoring internal heating coils (Sec. Sec.  112.8(c)(7) and
112.12(c)(7)); (8) effluent treatment facilities (Sec. Sec.
112.8(c)(9) and 112.12(c)(9)); (9) 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)); and (10) produced water container provisions (Sec.
112.9(c)(6)).
    EPA believes no further differentiation is warranted for onshore
oil production facilities in Sec.  112.9 (except for the produced water
container provisions in Sec.  112.9(c)(6) which require PE
certification and therefore do not apply for Tier I qualified
facilities) 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 containers) and therefore, no further differentiation is
warranted. An onshore drilling or workover facility has three
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). This provision also applies to Tier I qualified
facilities. That is, 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 is
optional. Under this final rule, an owner or operator of a Tier I
qualified facility can choose to prepare and implement either a full
PE-certified SPCC Plan or a self-certified SPCC Plan according to all
of the requirements of Sec.  112.6(b) in order to comply with the
requirements under 40 CFR part 112. In other words, if a Tier I
qualified facility owner or operator chooses not to use the Plan
template in Appendix G, he could comply with the Tier II qualified
facility requirements in Sec.  112.6(b) or choose to prepare a full PE-
certified Plan instead of a self-certified one. EPA modified the
introductory sentences to Sec.  112.6 and the text of Sec.  112.6(a)(1)
slightly from the text that was proposed, in order to make this
optional approach more clear.
a. Comments
    Many commenters expressed general support for the amended
requirements for Tier I qualified facilities. However, a few commenters
indicated that more stringent requirements would be appropriate for
Tier I qualified facilities. One commenter suggested that a PE certify
the SPCC Plan template for Tier I qualified facilities to ensure
compliance. Another commenter suggested that EPA require review and
approval of the Plan by someone who is familiar with industry standards
and is ``certified'' to perform inspections following industry
standards; the commenter believes this would address the potential
liabilities and environmental impacts associated with self-
certification by inexperienced owners and operators. One other
commenter suggested that Tier I qualified facilities should be required
to have a facility diagram, because if Tier I qualified facilities are
small and simple, a diagram should not be an excessive burden. Still
another commenter requested that EPA remove the five-year review
requirements; instead, the commenter suggested that the Plan should
only be updated whenever there is a material change in the facility
that may affect discharges.
    Many commenters also requested additional relief for Tier I or
other regulated facilities. One commenter suggested that
``streamlined'' regulatory provisions should be extended to all
regulated facilities. One commenter suggested that Tier I qualified
facilities should only be required to meet the general requirements
under Sec.  112.7 and the security and integrity testing requirements
for qualified facilities. Other commenters requested that EPA confirm
that an Appendix G template may be certified by a PE, and that Tier I
qualified facilities may complete a full self- or PE-certified Plan
should they choose. Finally, one commenter suggested that the owner or
operator of a regulated facility certify under oath that he has met the
SPCC requirements.
b. Response to Comments
    EPA's basis for developing a self-certified Plan template which
contains a streamlined set of requirements for facilities that meet the
Tier I eligibility criteria is that the Agency believes that
implementation of the requirements in the template can provide
environmental protection and prevent the discharge of oil into
navigable waters or adjoining shorelines. Therefore, EPA does not agree
with commenters that a third-party representative (such as a PE or a
certified inspector) should confirm compliance with the rule
requirements. As stated earlier, due to the simplicity of these
facilities and other factors described above, EPA believes it is
appropriate to allow a facility owner or operator to self-certify the
SPCC Plan. It is the responsibility of the owner or operator of any
SPCC-regulated facility to ensure compliance with 40 CFR part 112 and
ensure implementation of the Plan.
    The Agency also disagrees with the commenter who suggested that EPA
require a facility diagram for Tier I qualified facilities. Although
the Agency does not intend for a facility diagram to be an excessive
burden for an owner or operator to develop, EPA believes the completed
template provides the same information that would be available on a
facility diagram for a Tier I qualified facility. The SPCC rule
requirements for a facility diagram are: (1) To mark the location and
contents of each fixed oil storage container (including containers and
piping that are otherwise exempted from the rule) and storage areas
where mobile or portable containers are located; and (2) to include all
transfer stations and connecting pipes. In the case of a Tier I
qualified facility, the visual representation of the diagram is not
necessary because EPA believes that these facilities would have few
aboveground oil storage containers with limited transfer areas and very
little piping (if any). The ``Oil Storage Containers and Capacities''
table in Appendix G, Section III (Table G-2) of the template requires
that all oil storage containers (such as aboveground containers,
completely buried tanks, and oil-filled equipment) be listed, including
the contents and oil storage capacity of each container. The
``Containers with Potential for an Oil Discharge'' table in Appendix G,
Section III (Table G-4) requests the following information for transfer
areas and piping: the volume of oil that could potentially be
discharged and the flow direction of an uncontained discharge (i.e., a
description of where the discharge would flow if secondary containment
fails). A facility diagram for a Tier I qualified facility would
provide minimal additional planning benefit to prevent an oil discharge
from the facility.
    EPA also disagrees that it should delete the five-year review
requirements. The Agency agrees that the SPCC Plan should be updated
whenever there is a material change in the facility that may affect
discharges. However, Tier I qualified facilities should remain subject
to the same requirement to periodically review and update the Plan to
include more effective prevention and control technology in order to
reduce the likelihood of a discharge as described in Sec.  112.1(b).
    A commenter suggested that all facilities should be eligible for
streamlined provisions. While the Agency has amended the SPCC
regulations in the past (71 FR 77266, December 26, 2006) and in this
action to streamline certain SPCC rule requirements (for example,
security and integrity testing) for all facilities, the streamlined
provisions included in the Plan template in Appendix G are limited to
Tier I qualified facilities based on the Agency's judgment that
eliminating and/or modifying certain SPCC requirements was appropriate
for facilities that store or handle smaller volumes of oil and that
meet the eligibility criteria. Other facilities contain larger volumes
of oil, have large oil storage containers on-site, or are more complex,
and thus, applying the streamlined requirements adopted for

Tier I qualified facilities would be inappropriate.
    Another commenter suggested that EPA simplify the Plan requirements
for a Tier I qualified facility to include only the general
requirements under Sec.  112.7 and the security and integrity testing
requirements. However, the commenter did not provide any data to
support eliminating the specific requirements under Subparts B and C,
such as those pertaining to facility drainage and bulk storage
containers. Therefore, EPA did not incorporate this change into the
final action.
    One commenter requested that EPA confirm that an Appendix G
template may be certified by a PE. EPA recognizes that the owner or
operator of a Tier I qualified facility may decide to obtain assistance
in the development of an SPCC Plan and want to have a PE certify the
Plan; however, the only required certification for a Plan following
Appendix G is the self-certification completed by the owner or operator
of the facility. EPA is not making the PE certification an additional
option for compliance for Tier I qualified facilities because the
Agency believes that this may suggest that it expects PE-certified
Plans for this subset of qualified facilities. In addition, because the
purpose of establishing the ``Tier I category'' was to allow facilities
that met the Tier I eligibility criteria to meet the requirements of
the SPCC rule in a streamlined manner, EPA believes it would complicate
the rule, particularly if the owner or operator of the facility wants
to request that environmental equivalence determinations be allowed for
Tier I qualified facilities, such as allowed for Tier II facilities
under the Tier II hybrid Plan. However, as EPA has noted previously,
completion of the Appendix G template is optional. The owner or
operator of a Tier I qualified facility may choose to have a PE-
certified SPCC Plan following all the requirements in Sec.  112.7 and
subparts B and C, as applicable, or prepare a hybrid Plan that includes
all applicable provisions under Tier II.
    Another commenter suggested requiring that the owner or operator of
a regulated facility certify under oath that he has met the SPCC
requirements. Section Sec.  112.6(a)(1) requires the owner or operator
certify that: (i) He is familiar with the applicable requirements of 40
CFR part 112; (ii) he has visited and examined the facility; (iii) he
has prepared the Plan in accordance with accepted and sound industry
practices and standards; (iv) he has established procedures for
required inspections and testing in accordance with industry inspection
and testing standards or recommended practices; (v) he will fully
implement the Plan; (vi) the facility meets the qualification criteria
in Sec.  112.3(g)(1); (vii) the Plan does not deviate from any
requirement of this part as allowed by Sec.  112.7(a)(2) and Sec.
112.7(d) or include an exemption/measures pursuant to Sec.  112.9(c)(6)
for produced water containers and any associated piping and
appurtenances downstream from the container; and (viii) the Plan and
individual(s) responsible for implementing this Plan have the approval
of management, and the facility owner or operator has committed the
necessary resources to fully implement this Plan. EPA believes that
inclusion of the self-certification statements in the Plan and
signature of the owner or operator is sufficient to demonstrate that he
understands his responsibilities under 40 CFR part 112.
3. SPCC Plan Template
    The SPCC Plan template for Tier I qualified facilities is found in
Appendix G in this final rule. To facilitate the development of SPCC
Plans at Tier I qualified facilities, EPA intends to make the Plan
template available on its Web site, http://www.epa.gov/emergencies.
Once completed and certified by the owner or operator, the Plan
template serves as the SPCC Plan for the facility. As for any facility
subject to the SPCC rule, the owner or operator must maintain a written
copy of the Plan--which in this case would be the completed and self-
certified SPCC Plan template--at the facility or at the nearest field
office if the facility is attended less than four hours per day (Sec.
112.3(e)).
    The Agency emphasizes that use of the Plan template approach is
optional. An owner or operator of a Tier I qualified facility can
choose to prepare and implement either a full PE-certified SPCC Plan or
a self-certified SPCC Plan according to all of the requirements of
Sec.  112.6(b) (for a Tier II qualified facility) in order to comply
with the requirements under 40 CFR part 112.
    In the October 2007 proposal, EPA sought comments on whether the
SPCC Plan template addressed the concerns of owners and operators of
facilities with relatively smaller volumes of oil, while maintaining
the environmental protection intended by the regulation. The Agency
also sought comments on the clarity and ease-of-use of the Plan
template. The Agency has modified the Plan template based on specific
comments received.
a. Comments
    Several commenters were generally supportive of the template format
and/or content. However, one commenter indicated that the template is
too easy to use, provides no assurance of compliance, and will be
ignored by small facilities. Another commenter suggested that the
template does not provide enough instruction and will encourage
facility operators that have little knowledge of part 112 to develop
SPCC Plans that are meaningless. On the other hand, several commenters
expressed concern that the Appendix G template would be too burdensome.
    Other commenters suggested that EPA allow for a flexible Tier I
qualified facility Plan format rather than require the owner or
operator to use the template in Appendix G. Several other commenters
suggested that EPA allow, as part of the Appendix G template, the Plan
to take a ``hybrid'' approach, as allowed for Tier II qualified
facilities, to provide flexibility to Tier I qualified facilities that
need to deviate from the rule requirements when the owner or operator
determines that secondary containment is impracticable or when there is
an alternative measure that provides equivalent environmental
protection to an SPCC rule requirement.
    A commenter suggested that operators preparing multi-facility SPCC
Plans covering multiple facilities that are individually eligible for
Tier I status should also be allowed to use the template, and that the
rule should be specifically modified to reflect this. Another commenter
suggested that EPA publish the template as guidance or an educational
primer for Tier I qualified facilities, and make it readily available
on the EPA Web site. Another commenter requested that EPA provide for
an online submission of the template-based Plan for increased
compliance.
    Finally, several commenters pointed out a number of areas where
minor formatting, wording, or other corrections could be made to the
template for simplification, clarity, or improved accuracy (as
described in the response to comments section below).
b. Response to Comments
    EPA received several comments that the Plan template in Appendix G
is too burdensome for Tier I qualified facilities, while other
commenters argued that it is too easy to use. The Plan template is
designed to be a simple and straightforward SPCC Plan that includes
only the requirements that should apply to Tier I qualified facilities.
EPA intends to provide supplementary guidance on the Agency's Web site
to assist owners and operators of Tier I (and Tier II) qualified
facilities in the development of an SPCC Plan for these facilities.
Thus, EPA

expects that such additional guidance will help those facilities that
choose to utilize the Appendix G template to comply with the SPCC Plan
requirement.
    Several commenters suggested that EPA allow for a flexible Plan
format rather than require the owner or operator to use the template in
Appendix G. EPA agrees that it is appropriate to allow the use of a
flexible Plan format for qualified facilities that, for example, want
to combine multiple local, state or Federal regulatory requirements
into one Plan, as long as a cross-reference is provided. Therefore, EPA
is amending the rule language in Sec.  112.6(a)(1) to allow for a
flexible Plan format for owners or operators of Tier I qualified
facilities that do not choose to use the template provided in Appendix
G of the rule. The amended rule text states that the template in
Appendix G may be used as the SPCC Plan to meet the 40 CFR part 112
requirements. However, if the Appendix G template is not used, then an
equivalent Plan must be prepared in writing, and must be supplemented
with a section that cross-references the location of requirements
listed in this part. For example, the owner or operator of a facility
that has developed a Stormwater Pollution Prevention Plan (SWPPP) under
the National Pollutant Discharge Elimination System (NPDES) that meets
all of the applicable SPCC regulatory requirements in Sec.  112.6(a)(3)
and Appendix G may use the SWPPP as the SPCC Plan. However, the SWPPP
must include a cross-reference and the self-certification statements in
Sec.  112.6(a)(1) and Appendix G. An owner or operator of a Tier I
qualified facility may use the template in Appendix G to comply with
the regulation or use it as a model and modify it as necessary to meet
the facility-specific needs, as long as all applicable rule
requirements are included in the SPCC Plan. The following sample cross-
reference is intended to be an example of the owner/operator's
development of such a cross-reference.

 Sample Cross-Reference for Plans Using Local, State, or Other Federal Regulations To Satisfy SPCC Requirements
----------------------------------------------------------------------------------------------------------------
               SPCC provision                              Description of requirement                 Plan page
----------------------------------------------------------------------------------------------------------------
Sec.   112.4...............................  Spill reporting requirements..........................  ...........
Sec.   112.5(b)............................  Five-year Plan review.................................  ...........
Sec.   112.6(a)(1).........................  Preparation and self-certification of the Plan........  ...........
Sec.   112.6(a)(2).........................  Certification of technical amendments.................  ...........
Sec.   112.6(a)(3)(i)......................  Failure analysis......................................  ...........
Sec.   112.6(a)(3)(ii).....................  Bulk storage container secondary containment..........  ...........
Sec.   112.6(a)(3)(iii)....................  Overfill prevention...................................  ...........
Sec.   112.7(a)(3)(i)......................  Address the type of oil in each container and its       ...........
                                              storage capacity.
Sec.   112.7(a)(3)(iv).....................  Address countermeasures for discharge discovery,        ...........
                                              response, and cleanup.
Sec.   112.7(a)(3)(vi).....................  Provide contact list and phone numbers for those to be  ...........
                                              contacted in case of a discharge.
Sec.   112.7(a)(4).........................  Provide NRC notification information..................  ...........
Sec.   112.7(a)(5).........................  Describe procedures you will use when a discharge       ...........
                                              occurs.
Sec.   112.7(c)............................  Provide appropriate containment and/or diversionary     ...........
                                              structures or equipment to prevent a discharge as
                                              described in Sec.   112.1(b).
Sec.   112.7(e)............................  Conduct inspections and tests in accordance with        ...........
                                              written procedures that you develop for the facility.
Sec.   112.7(f)............................  Train oil-handling personnel in the operation and       ...........
                                              maintenance of equipment to prevent discharges;
                                              discharge procedure protocols; applicable pollution
                                              control laws, rules, and regulations; general
                                              facility operations; and the contents of the facility
                                              Plan.
Sec.   112.7(g)............................  Implementation of security measures to prevent          ...........
                                              unauthorized access to oil handling, processing, and
                                              storage area.
Sec.   112.7(k)............................  Requirements related to oil-filled operational          ...........
                                              equipment.
Sec.  Sec.   112.8(b)(1), 112.12(b)(1).....  Restrain drainage from diked storage areas............  ...........
Sec.  Sec.   112.8(b)(2), 112.12(b)(2).....  Use valves of manual, open-and-closed design for the    ...........
                                              drainage of diked areas; if facility drainage drains
                                              into a watercourse, inspect and drain uncontaminated
                                              retained stormwater.
Sec.  Sec.   112.8(c)(1), 112.12(c)(1).....  Do not use a container for oil storage unless its       ...........
                                              material and construction are compatible with the
                                              material stored and conditions of storage such as
                                              pressure and temperature.
Sec.  Sec.   112.8(c)(3), 112.12(c)(3).....  Drainage of uncontaminated rainwater from the diked     ...........
                                              area into a storm drain or discharge of an effluent
                                              into an open watercourse.
Sec.  Sec.   112.8(c)(4), 112.12(c)(4).....  Protect completed buried storage tanks from corrosion   ...........
                                              and regularly leak test buried metallic storage tanks.
Sec.  Sec.   112.8(c)(5), 112.12(c)(5).....  Do not use partially buried or bunkered metallic tanks  ...........
                                              for the storage of oil unless protected from
                                              corrosion.
Sec.  Sec.   112.8(c)(6), 112.12(c)(6).....  Administer integrity testing for storage tanks........  ...........
Sec.  Sec.   112.8(c)(10), 112.12(c)(10)...  Promptly correct visible discharges which result in a   ...........
                                              loss of oil from the container.
Sec.  Sec.   112.8(d)(4), 112.12(d)(4).....  Regularly inspect all aboveground valves, piping and    ...........
                                              appurtenances.
Sec.   112.9(b)............................  Requirements for oil production facility drainage.....  ...........
Sec.   112.9(c)(1).........................  Material compatibility requirements for containers at   ...........
                                              oil production facilities.
Sec.   112.9(c)(2).........................  Secondary containment requirements for tank battery,    ...........
                                              separation, and treating facility installations at
                                              oil production facilities.
Sec.   112.9(c)(3).........................  Container inspection requirements at oil production     ...........
                                              facilities.
Sec.   112.9(c)(4).........................  Overfill prevention requirements at oil production      ...........
                                              facilities.
Sec.   112.9(c)(5).........................  Requirements for flow-through process vessels at oil    ...........
                                              production facilities.
Sec.   112.9(d)(1).........................  All aboveground valves and piping associated with       ...........
                                              transfer operations are inspected periodically and
                                              upon a regular schedule.

Sec.   112.9(d)(3).........................  For flowlines and intra-facility gathering lines that   ...........
                                              do not have secondary containment in accordance with
                                              Sec.   112.7(c), prepare an oil spill contingency
                                              plan and a written commitment of resources (except
                                              when the facility has submitted a Facility Response
                                              Plan in accordance with Sec.   112.20).
Sec.   112.9(d)(4).........................  Prepare and implement a written program of flowline/    ...........
                                              intra-facility gathering line maintenance.
Sec.   112.10(b)...........................  Position or locate mobile drilling or workover          ...........
                                              equipment so as to prevent a discharge as described
                                              in Sec.   112.1(b).
Sec.   112.10(c)...........................  Provide catchment basin or diversion structures to      ...........
                                              intercept and contain discharges.
Sec.   112.10(d)...........................  Install a blowout prevention assembly and well control  ...........
                                              system before drilling.
----------------------------------------------------------------------------------------------------------------

    Commenters also suggested that EPA allow Tier I qualified
facilities, as part of the Appendix G template, to use the ``hybrid''
approach, as is currently allowed for Tier II qualified facilities to
provide flexibility to Tier I qualified facilities that need to deviate
from the rule requirements when the owner or operator determines that
secondary containment is impracticable, when there is an alternative
measure that provides equivalent environmental protection to an SPCC
rule requirement, or when an owner or operator wants to include an
exemption/measures pursuant to Sec.  112.9(c)(6) for produced water
containers and any associated piping and appurtenances downstream from
the container. EPA has decided not to allow Tier I facilities to
utilize a ``hybrid approach,'' because the primary purpose of
developing the ``Tier I'' category is to allow those facilities with
simple oil storage configurations to have a relatively simple means to
comply with the SPCC requirements. Allowing Tier I facilities to use a
hybrid approach would seem to defeat that purpose. If a facility
qualifies to use the Appendix G template but has site-specific factors
that make it difficult to use the template as written, then the
Appendix G Plan template may not be an appropriate tool for the
facility to address the oil spill planning elements for the facility.
Instead, the facility could elect to comply with the SPCC requirements
as a Tier II qualified facility--that is, self-certify that they comply
with the full set of rule requirements in Sec.  112.7(c) and subparts B
and C, as applicable, rather than the differentiated requirements
designed specifically for facilities with simple oil storage
configurations. For example, if the owner or operator cannot provide
secondary containment for a bulk storage container at a Tier I
qualified facility because it is impracticable, then it is appropriate
that the Plan include a facility diagram (Sec.  112.7(a)(3)) to show
where the container is located at the facility and a prediction of the
direction, rate of flow and quantity of oil that may be discharged from
the container (Sec.  112.7(b)). EPA believes it is appropriate to
require the owner or operator to comply with requirements that would
not otherwise apply to Tier I qualified facilities because this
information may be necessary as part of the spill prevention practices
for the facility. Therefore, the owner or operator of the facility may
choose to develop a hybrid Plan following the Tier II qualified
facility requirements in Sec.  112.6(b) or a PE-certified SPCC Plan
following Sec.  112.7 and subparts B and C, as applicable.
    Commenters also requested that EPA allow the owner or operator of
several facilities that each individually meet the criteria for a
qualified facility to develop a multi-facility SPCC Plan in accordance
with the Tier I requirements. EPA agrees that this is appropriate and
the final rule allows flexibility in the Plan format to accommodate a
multi-facility Plan approach for Tier I qualified facilities. The owner
or operator of the facility is still required to meet all applicable
requirements of the rule in the Plan as described in Sec.  112.6(a)(3)
and Appendix G.
    With respect to the comment that EPA allow such SPCC Plans to be
submitted online, EPA does not believe that online submission of the
template-based Plan will increase compliance with the SPCC regulation
because there is currently no requirement for the owner or operator of
a regulated facility to submit an SPCC Plan to the Agency, unless
requested to do so by the Regional Administrator. The Agency requires
that owners and operators maintain a copy of the Plan at the facility,
in accordance with Sec.  112.3(e).
    EPA has amended the text that was proposed as Appendix G of 40 CFR
part 112 to incorporate many of the suggested recommendations in the
final rule. To simplify or clarify use of the template, these
amendments will:
     Ensure the Table in Attachment 3.2 of Appendix G is
consistent with the STI-SP001 requirements for Category I Tanks.
     Clarify which oil storage containers at the facility must
be included when calculating the total facility oil storage capacity to
determine eligibility of the facility for Tier I and II requirements--
that is, any aboveground container at the facility that contains oil
and that is not otherwise exempt from the rule. This includes bulk
storage containers, such as tanks and mobile or portable containers;
oil-filled operational equipment (such as transformers); and other oil-
filled equipment, such as flow-through process equipment.
     Include formatting suggestions that make the template
easier to use and technical corrections, such as providing letter
references for the owner or operator's obligations in the certification
statement; numbering tables; using numbered or lettered superscripts;
identifying acronyms when they are first used in the document (for
example, Regional Administrator (RA) in Section III, Part 6); and
moving the spill reporting requirements to the correct section in the
template (from Section III, Part 6 to Section III, Part 8.)
     Clarify that EPA means aboveground oil storage capacity in
Section I, Part 6.a and 6.c of Appendix G.
     Clarify that the NRC Notification Procedures in Section
III, Part 7 must be conducted immediately following identification of a
discharge to navigable waters or adjoining shorelines.
     Clarify which containers are exempt from the regulation
and not required to be included in the table in Section III, Part 1.
Exempt containers that are not included in the capacity calculation
include: Any container with a storage capacity of less than 55 U.S.
gallons of oil; storage containers used exclusively for wastewater
treatment; permanently closed containers; motive power containers; hot-
mix asphalt containers; heating oil containers used solely at a single-
family residence; and pesticide application equipment or related mix
containers. Although the criteria to determine eligibility for
qualified facilities focuses on the aboveground oil

storage containers at the facility, completely buried tanks at a
qualified facility, unless they are otherwise exempt, such as USTs that
are subject to all of the technical requirements of 40 CFR part 280 or
a state program approved under 40 CFR part 281, are still subject to
the rule requirements and must be addressed in the template. They are
not counted towards the qualified facility threshold because they are
not aboveground containers. Finally, certain produced water containers
may be exempt from the rule; however, this exemption is based on
certification by a PE and therefore produced water containers at a Tier
I qualified facility SPCC Plan would not be eligible for the exemption.
In other words, the owner or operator of a Tier I qualified facility
would not be eligible to develop a self-certified SPCC Plan using the
template in Appendix G and have a produced water container exempt from
the regulation, because the exemption requires a PE certification. (See
section V.M of this preamble for further discussion on produced water
containers.)
     Amend the Onshore Facility Checklists to indicate that not
all provisions may be applicable to all owners or operators, and
provide instructions to indicate on the checklist when a provision is
not applicable.
     Clarify the scope of the inspection requirements for bulk
storage containers in the Inspection Log in Attachment 3 of Appendix G.
     Revise the discussion in Section III, Part 2 to include
the word ``secondary.''
    Finally, EPA considered, but did not adopt the following
recommendations to amend the template to:
     Revise the template in Appendix G to change ``navigable
waters or adjoining shorelines'' to ``discharges as described in Sec.
112.1(b).'' EPA refers to navigable waters or adjoining shorelines in
the template to make the document easier to understand and more user-
friendly; the Agency does not consider this to be a limitation in the
scope of the rule. The language in Sec.  112.7 also applies to these
facilities and uses the term ``discharges as described in Sec.
112.1(b).''
     Include a section for state and local requirements. The
Agency does not believe that it is necessary for the owner or operator
of a facility to address state or local requirements as part of the
SPCC Plan. However, the Agency is amending the rule language to allow
for a flexible Plan format for Tier I qualified facilities. This will
allow a facility owner or operator to address local, state and/or other
Federal requirements in one Plan for oil spill prevention planning
purposes if he so chooses. The Agency will also clarify in rule text
that Sec.  112.7(j) does not apply to Tier I qualified facilities.
     Remove mode of failure in the Secondary Containment table
in Appendix G. This table addresses rule requirements for both Sec.
112.7(b) and (c) along with the more specific secondary containment
requirements under Subparts B and C. Therefore, the Agency believes it
is appropriate to have the owner or operator identify `the mode of
failure; the flow direction and quantity of the discharge; and the
secondary containment method and containment capacity' for the
containers listed. The owner or operator may use either active or
passive approaches for complying with the secondary containment
requirements (for more information, see the SPCC Guidance for Regional
Inspectors).
     Refer to the Plan format in Appendix G as document rather
than ``template.'' Once the owner or operator completes the Appendix G
template to include site-specific information, the resulting document
is an SPCC Plan for the facility.
     Amend the self-certification statement to specifically
highlight the owner or operator's responsibility to provide secondary
containment. The elements of the Tier I self-certification requirement
are similar in scope to those required for an owner or operator of a
Tier II qualified facility who chooses to self-certify a Plan (as
promulgated in December 2006, 71 FR 77266). Additionally, the Agency
has described the secondary containment requirements of the regulation
in more detail in the SPCC Guidance for Regional Inspectors.
     Amend the table heading. ``Secondary containment capacity
(gallons)'' with the superscript that identifies the secondary
containment requirements for bulk storage containers. The Agency
believes that the table appropriately identifies the secondary
containment requirements for bulk storage containers and mobile/
portable containers. Additionally, the Agency has described the
secondary containment requirements of the regulation in more detail in
the SPCC Guidance for Regional Inspectors.
     Move footnotes to the discussion preceding the tables in
the Appendix. The Agency believes it is appropriate to provide guidance
to assist in the development of the SPCC Plan template in a separate
document, if necessary, rather than increase the length of the
template.
     Simplify secondary containment information (Section III,
Tables 1 and 2). The Agency disagrees that additional simplification is
appropriate for these tables. The tables are designed to address the
various oil storage containers, equipment and oil-handling areas where
secondary containment is required. For Tier I qualified facilities with
only one or two oil storage containers, the tables should be easy to
complete.
     Amend the information that must be reported to the NRC in
Section III, Part 7. The bullets in the table cite the current
regulatory requirements in Sec.  112.7(a)(4), which also conforms with
the type of information that is collected by the NRC.
     Amend the Contingency Plan checklist included as an
attachment to Appendix G. EPA did not propose to amend the contingency
plan requirements under 40 CFR part 109 and the checklist is intended
as a reminder for the owner or operator to address these requirements
when developing the contingency plan for the facility (when
applicable). This contingency plan checklist is intended as a guide to
assist the owner or operator of a Tier I qualified facility to prepare
a contingency plan in lieu of the general secondary containment
requirements for qualified oil-filled operational equipment or as an
alternative to sized secondary containment for specific equipment at an
oil production facility (such as flowlines).
4. Self-Certification and Plan Amendments
    The elements of the Tier I self-certification requirement are
similar in scope to those required for an owner or operator of a Tier
II qualified facility who chooses to self-certify an SPCC Plan (as
promulgated in December 2006, 71 FR 77266). An owner or operator of a
Tier I qualified facility who chooses to complete an Appendix G
template Plan (or some other equivalent Plan) is required to certify
that: (1) He is familiar with the applicable requirements of the SPCC
rule; (2) he has visited and examined the facility; (3) the Plan has
been prepared in accordance with accepted and sound industry practices
and standards; (4) the procedures for required inspections and testing
have been established in accordance with industry inspection and
testing standards and recommended practices; (5) the Plan is being
fully implemented; (6) the facility meets the qualification criteria
set forth under Sec.  112.3(g)(1); (7) the Plan does not utilize the
environmental equivalence or impracticability provisions under Sec.
112.7(a)(2) and 112.7(d), or include an

exemption/measures pursuant to Sec.  112.9(c)(6) for produced water
containers and any associated piping and appurtenances downstream from
the container; and (8) the Plan and the individual(s) responsible for
implementing the Plan have the full approval of management and the
facility owner or operator has committed the necessary resources to
fully implement the Plan.
    Under Sec.  112.5 of the SPCC rule, an owner or operator must
review and amend the SPCC Plan following any change in facility design,
construction, operation, or maintenance that materially affects its
potential for a discharge as described in Sec.  112.1(b). Consistent
with the current requirement for qualified facilities, the owner or
operator of a Tier I qualified facility is allowed to self-certify any
of these technical amendments to the Plan under Sec.  112.6(a)(2), and
document this certification in the Plan template (or some other
equivalent Plan).
    If the owner or operator of a Tier I qualified facility makes
changes to the facility such that the maximum individual aboveground
oil storage container capacity is greater than 5,000 U.S. gallons, the
facility no longer qualifies as a Tier I facility, even if the total
oil storage capacity is less than 10,000 U.S. gallons, and is not
eligible to implement the self-certified Appendix G template Plan (or
some other equivalent Plan). The facility owner or operator must
determine whether the facility still meets the eligibility criteria for
a Tier II qualified facility (i.e., total aboveground storage capacity
remains below 10,000 U.S. gallons). If the facility meets the Tier II
qualified facility criteria, within six months following the change in
the facility, the owner or operator is required to prepare and
implement an SPCC Plan in accordance with Sec.  112.6(b) or prepare and
implement an SPCC Plan in accordance with the general Plan requirements
in Sec.  112.7, and the applicable requirements in subparts B and C,
including having the Plan certified by a PE, as required under Sec.
112.3(d). If, on the other hand, the facility is no longer a qualified
facility, the owner or operator is required to, within six months
following the change in the facility, prepare and implement an SPCC
Plan in accordance with the general Plan requirements in Sec.  112.7,
and the applicable requirements in subparts B and C, including have the
Plan certified by a PE.
a. Comments
    A commenter noted that the self-certification statement ``should
not be modeled after what EPA desires to see a licensed PE provide.''
The commenter noted that promoting or encouraging development of
qualified facility SPCC Plans by non-licensed engineers violates codes
in many states.
b. Response to Comments
    While the owner or operator of a qualified facility may choose to
self-certify the SPCC Plan in lieu of a PE certified Plan, he is still
required to comply with all of the SPCC requirements and to develop and
implement a spill prevention program in accordance with good
engineering practices. The owner or operator may do so by following
guidance, industry standards, industry design specifications or
industry recommended or best management practices. This is analogous to
how a person with no accounting experience is expected to comply with
applicable state and Federal tax laws. Many people choose to have a
Certified Public Accountant (CPA) prepare their annual tax documents;
however, the Internal Revenue Service (IRS) does not require that a CPA
conduct this activity. A person that chooses to complete the tax forms
on his own is not relieved from the liability to do so in accordance
with all Federal and state requirements. That person is expected to
understand the tax laws and regulations and prepare the documents
following all applicable requirements. He may choose to use the forms
and guidance provided by the IRS or state agency, or use software or
other publicly available guidance to aid him in the correct completion
of the tax forms.
    For SPCC, the Agency believes that an owner or operator who follows
guidance; standard design and operational protocols; industry standards
or recommended practices; or guidance developed by professional
associations is following ``good engineering practices'' to comply with
the SPCC rule requirements. Where operational changes at a facility are
necessary to comply with the rule requirements, the owner or operator
must follow all appropriate state and local requirements (such as for
permitting and construction) and, if necessary, obtain the appropriate
professional assistance. However, in the case of a qualified facility,
EPA believes that the development of the SPCC Plan itself is not an
engineering function and an owner or operator can prepare an SPCC Plan
that describes how the facility complies with the SPCC rule
requirements. For a qualified facility, the Agency believes it is
appropriate for the owner or operator to attest that the information in
the SPCC Plan is true and accurate following the self-certification
language in Sec.  112.6. EPA modeled the certification statements after
the PE certification provision in Sec.  112.3(d) with amendments to
remove language specific to engineering certification. Although EPA
agrees that the owner or operator of a facility should not be making
engineering determinations without proper credentials, the Agency
believes that there are elements of those attestations that are
appropriate for an owner or operator, such as acknowledging that they
are familiar with the requirements of this part. EPA also included
additional attestations for the owner or operator of the facility
pertaining to the qualification criteria and management approval of the
SPCC Plan.
    Finally, to the extent that a state has adopted a law, regulation,
or policy, such as one based on the National Council of Examiners for
Engineering and Surveying, that requires a PE to perform certain
functions, including certifying Plans, nothing in this action affects
whether a facility owner or operator would be required to utilize a PE
to meet the state or local requirements because this action does not
preempt any state or local requirements. Therefore, in states where the
engineer licensing boards have prohibited SPCC Plan self-certification,
the owner or operator may not be able to utilize the Tier I and Tier II
options to self-certify the Plan to comply with the SPCC requirements.
5. Tier II Qualified Facility Requirements
    EPA is designating qualified facilities that do not meet the
additional criterion for Tier I qualified facilities (i.e., no
individual aboveground oil storage container with a capacity greater
than 5,000 U.S. gallons) as Tier II qualified facilities. Although the
organization of the regulatory text in Sec.  112.6 has changed in order
to accommodate the tiered approach, the requirements for Tier II
qualified facilities remain the same as they were when these
requirements were promulgated on December 26, 2006 (71 FR 77266). Tier
II qualified facilities may choose to comply with the requirements in
Sec.  112.6(b) by completing and implementing a self-certified SPCC
Plan, in lieu of having a PE-certified Plan. The self-certified SPCC
Plan must comply with all of the applicable requirements of section
Sec.  112.7 and subparts B and C of the rule; any deviations as allowed
pursuant to Sec.  112.7(c)(2) and (d) must be certified by a licensed
PE (``hybrid Plan''). Also see

section V.M.7.d of this preamble, Overlap Between Produced Water
Container Alternatives and Qualified Facilities, for information on
using the ``hybrid Plan'' approach to self-certify an SPCC Plan using
one of the alternative approaches for produced water containers (exempt
a produced water container or take advantage of the alternative
requirements in Sec.  112.9(c)(6)). Owners and operators of Tier II
qualified facilities are not able to use the Appendix G template
because it does not include all of the SPCC requirements that may apply
for these facilities.
    Additionally, in order to address the concerns of the oil and gas
sector, EPA is finalizing an alternative set of qualified facility
eligibility criteria specific for onshore oil production facilities
that does not rely on facility oil storage capacities. EPA believes
these alternative criteria are more appropriate to qualify the oil
production facilities for Plan self-certification. See Section V.M of
this document for further discussion on the alternative criteria for
the oil and gas production sector.
a. Comments
    Two commenters suggested that EPA allow Tier II qualified
facilities to self-certify Plans. Additional commenters requested that
Tier II qualified facilities be allowed to use the template.
b. Response to Comments
    EPA is designating qualified facilities that do not meet the
additional criterion for Tier I qualified facilities (i.e., no
individual aboveground oil storage container with a capacity greater
than 5,000 U.S. gallons) as Tier II qualified facilities. The
requirements for Tier II qualified facilities remain the same as they
were when they were promulgated in December 2006. Only Tier I qualified
facilities will be able to use the template in Appendix G of 40 CFR
part 112 to comply with the SPCC rule. The streamlined provisions
included in the Plan template in Appendix G are limited to Tier I
qualified facilities because they were specifically analyzed and
designed for facilities that store limited quantities of oil, in small
oil storage containers and generally have simple configurations. Other
facilities contain larger volumes of oil, have large oil storage
containers on-site, or are more complex and thus, applying the
streamlined requirements adopted for Tier I qualified facilities would
be inappropriate.
6. Alternative Option Considered
    In the October 2007 proposal (72 FR 58378, October 15, 2007), EPA
described an option wherein the Agency would exempt a certain subset of
qualified facilities from the SPCC requirements altogether, based on a
lower facility storage capacity threshold (such as 5,000 U.S. gallons).
    a. Comments
    One commenter supported this option.
    b. Response to Comments
    EPA did not receive any data to support an exemption of a subset of
qualified facilities. Therefore, the Agency is not finalizing this
amendment.

H. General Secondary Containment

    At a facility subject to the SPCC rule, all areas with the
potential for a discharge as described in Sec.  112.1(b) are subject to
the general secondary containment provision, Sec.  112.7(c). These
areas may have loading/unloading areas (also referred to as transfer
areas), piping, and/or mobile refuelers, and may include other areas of
a facility where oil is present. The general secondary containment
requirement requires that these areas be designed with appropriate
containment and/or diversionary structures to prevent a discharge of
oil in quantities that may be harmful (that is, as described in 40 CFR
part 110; see Sec.  112.1(b)). EPA is amending the general secondary
containment provision to provide additional clarity, consistent with
the guidance published in the SPCC Guidance for Regional Inspectors.
EPA is also amending Sec.  112.7(c) to provide an alternative to the
sized secondary containment requirements for flowlines and intra-
facility gathering lines at oil production facilities, as described in
Section V.M of this notice.
1. Revisions to the General Secondary Containment Requirement
    EPA is amending the general secondary containment requirement at
Sec.  112.7(c) in three ways: (1) By adding text regarding the method,
design and capacity of secondary containment; (2) by specifically
allowing both active and passive measures of secondary containment; and
(3) by including additional examples of prevention systems. Section V.M
of this notice describes an additional modification to the provision to
address flowlines and intra-facility gathering lines at oil production
facilities.
    Specifically, EPA is amending Sec.  112.7(c) by adding the text
``In determining the method, design, and capacity for secondary
containment, you need only to address the typical failure mode, and the
most likely quantity of oil that would be discharged. Secondary
containment may be either active or passive in design.'' This addition
is intended to make clear that the scope of the general secondary
containment requirement takes into consideration the typical failure
mode, and most likely quantity of oil that would be discharged,
consistent with current EPA guidance (SPCC Guidance for Regional
Inspectors).
    EPA is also amending Sec.  112.7(c) to make it clear that the
requirement allows for the use of both active and passive secondary
containment measures to prevent a discharge to navigable waters or
adjoining shorelines. Active containment measures are those that
require deployment or other specific action by the operator. These
measures may be deployed either before an activity involving the
handling of oil starts, or in reaction to a discharge, so long as the
active measure is designed to prevent an oil discharge from reaching
navigable waters or adjoining shorelines. Passive measures are
permanent installations and do not require deployment or action by the
owner or operator.
    EPA is further amending the general secondary containment provision
at Sec.  112.7(c)(1) to include the following additional examples of
prevention systems for onshore facilities: Drip pans, sumps, and
collection systems. Drip pans are typically used to isolate and contain
small drips or leaks until the source of the leak is repaired. They are
commonly used with product dispensing containers (such as drums),
uncoupling of hoses during bulk transfer operations, and for pumps,
valves, and fittings. Sumps and collection systems generally involve a
permanent pit or reservoir and the connected troughs/trenches that
collect oil. By expanding the list of examples of secondary containment
methods found in Sec.  112.7(c)(1), EPA intends to increase the clarity
and better represent current prevention practices. EPA emphasizes that
the list of prevention systems are examples only; other containment
methods may be used, consistent with good engineering practice.
a. Comments
    Many commenters expressed general support for the amendments to
Sec.  112.7(c). However, one commenter suggested that allowing
secondary containment for the most likely quantity of oil discharged
instead of worst case discharge contradicts Sec.  112.7(c) and is
inconsistent with 33 U.S.C. 1321(j)(5)(D).
    In addition, some commenters indicated that this amendment would
increase the number of calculations

necessary to determine likely release scenarios. The commenter
requested that EPA provide latitude to the certifying PE in developing
the different release scenarios and secondary containment requirements
that are appropriate for the facility, stating that calculations should
not have to be included. A commenter also suggested that EPA allow the
use of a common collection area or containment area, rather than
individual containment when there are several tanks located in close
proximity to each other. Another commenter suggested that EPA should
clarify in the rule text whether general secondary containment is
required for buried piping. Other commenters suggested changes to a
sentence in Sec.  112.7(c) to replace the word ``tank'' with ``piping
or oil-filled equipment.''
    Additionally, a commenter requested further examples on the
elements that can comprise an acceptable secondary containment system,
and commenters suggested that EPA clarify that the list of examples is
not all-inclusive.
b. Response to Comments
    The Agency's authority to promulgate the SPCC rule is found in 33
U.S.C. 1321(j)(1)(C) and requires the Agency to promulgate regulations
establishing procedures, methods, equipment and other requirements for
equipment to prevent discharges of oil and to contain those discharges.
The statutory provision gives the Agency broad discretion to establish
the requirements under the SPCC rule. Nowhere in this statutory
provision is a requirement that the SPCC regulations address worst case
discharges. Section 1321(j)(5)(D), however, directs the Agency to issue
regulations to require owners or operators to prepare and submit plans
to respond to worst case discharges. Consistent with this statutory
provision, EPA has promulgated facility response plan regulations in 40
CFR part 112 Subpart D. Therefore, EPA does not agree with the
commenter who suggested that this amendment is inconsistent with 33
U.S.C. 1321(j)(5)(D).
    Commenters also requested clarification on how much supporting
documentation is necessary (for example, calculations) to demonstrate
compliance with the general secondary containment requirements. In
order to determine that the facility has provided appropriate secondary
containment that complies with Sec.  112.7(c), an EPA inspector may
review the supporting documentation in the SPCC Plan (see the SPCC
Guidance for Regional Inspectors, Chapter 4). If calculations are not
included with the SPCC Plan, and the inspector suspects the general
secondary containment is inadequate, the inspector may request
supporting documentation from the owner or operator. Industry guidance
recommends that facility owners or operators include any secondary
containment capacity calculations and/or design standards with the
Plan. API Bulletin D16, ``Suggested Procedure for Development of Spill
Prevention Control and Countermeasure Plans,'' contains example
calculations to which inspectors may refer (see Exhibit E of
``Suggested Procedure for Development of Spill Prevention Control and
Countermeasure Plans,'' API Bulletin D16. Third Edition, December
2002). Calculations may be provided as part of the documentation to
support the adequacy of containment measures employed at the facility,
although they are not required. Nevertheless, the Plan preparer must
include enough detail in the SPCC Plan to describe the efficacy of the
measures used to comply with the general secondary containment
requirements in Sec.  112.7(c).
    With respect to the use of common containment systems, the Agency
wants to make clear that it is not necessary to provide separate
containment systems for each individual container or equipment.
Instead, the Plan preparer may choose to design facility drainage to
provide a common collection area for multiple containers, piping or
oil-filled equipment located at the facility. In order to comply with
the general secondary containment requirements, the owner or operator
must first identify the typical failure mode and quantity of oil that
could be discharged. Based on site-specific conditions, he can
determine what capacity is needed and design the secondary containment
system accordingly.
    Commenters also requested clarification on the type of equipment
subject to the general secondary containment requirements. The general
secondary containment provision in Sec.  112.7(c) is intended to
address the potential for oil discharges from all regulated parts of a
facility. Containment method, design, and capacity are determined by
good engineering practice to contain an oil discharge until cleanup
occurs. This determination should consider all areas of the facility
with a potential to discharge oil, including, but not limited to,
piping (both aboveground and buried), transfer areas and oil-filled
operational equipment.
    The Agency does not agree that it is necessary to replace the word
``tank'' with ``piping or oil-filled equipment'' in Sec.  112.7(c), as
suggested. Tanks, piping and oil-filled equipment are all examples of
primary containment systems and the Agency does not believe it is
necessary to replace one example with another in the rule language.
However, the word ``secondary'' is being added for clarity and
accomplishes the point raised by the commenter.
    EPA also is amending the language in Sec.  112.7(c)(1) to include
additional examples of secondary containment methods, as proposed. One
commenter requested additional clarification on other methods that may
be used to comply with the secondary containment requirements, such as
surface impoundments, on their own, or in connection with other
elements, such as oil/water separators or water treatment. Section
112.7(c) states that ``at a minimum, you must use one of the following
prevention systems or its equivalent * * *.'' EPA clarified in Chapter
4 of the SPCC Guidance for Regional Inspectors that the list of
secondary containment methods in Sec.  112.7(c) are examples only and
not meant to be all-inclusive. Other containment methods may be used,
consistent with good engineering practice. For example, a facility
could use an oil/water separator, combined with a drainage system, to
collect and retain discharges of oil within the facility. Surface
impoundments, oil/water separators, and wastewater treatment systems
that are designed and maintained in a way to meet the requirements of
Sec.  112.7(c) to prevent a discharge as described in Sec.  112.1(b)
would also serve as equivalent prevention systems. Additionally,
certification of the SPCC Plan verifies that secondary containment
methods are appropriate for the facility and that they follow good
engineering practice.

I. General Secondary Containment for Non-Transportation-Related Tank
Trucks

    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. EPA recognizes that other non-transportation-related tanker
trucks may operate similarly to mobile refuelers, though not
specifically transferring fuel (i.e., transformer oils, lubrication
oils, or certain AFVOs). Therefore, they may have the same difficulty
in complying with the sized secondary containment requirements. EPA is
now extending the amendment provided to mobile refuelers in the
December 2006 amendments (i.e., an exemption from the sized secondary

containment requirements) to non-transportation-related tank trucks at
a facility subject to the SPCC rule. Specifically, Sec. Sec.
112.6(a)(3)(ii), 112.8(c)(2), 112.8(c)(11), 112.12(c)(2), and
112.12(c)(11) have been amended to include the phrase ``except mobile
refuelers and other non-transportation-related tank trucks.'' Such non-
transportation-related tank trucks include those used to store (for
short periods of time) and transport fuel, crude oil, condensate, non-
petroleum, or other oils for transfer to or from bulk storage
containers; for example, a truck used to refill oil-filled equipment at
an electrical substation or a pump truck at an oil production facility.
Under this approach, the general secondary containment requirements at
Sec.  112.7(c) will still apply.
1. Comments
    Commenters generally supported extending the exemption for mobile
refuelers from the sized secondary containment requirements in
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) to non-transportation-related
tank trucks. However, a number of commenters requested that EPA expand
the scope of the relief or clarify its applicability. Specifically,
commenters requested that the relief be given to various other types of
vehicles and equipment, including tank cars or rail cars; mobile
refueling tank trucks at drilling and workover facilities; vehicles
associated with oil-filled electrical/operational equipment; mobile/
portable tanks used for maintenance activities associated with oil-
filled electrical equipment; vehicles involved in transloading (as
defined in 49 CFR 171.8); and small truck-mounted refueling and oil
tanks, up to 220 gallons, that are used to transport oils and fuels to
various remote facilities and construction sites.
    One commenter opposed extending the regulatory relief to non-
transportation-related tank trucks because there are technically-
feasible methods for facility owners or operators to conform with the
requirements, such as double-lined tanks, and that regulatory relief
would effectively punish those facilities that have already incurred
the costs of conforming with the sized secondary requirements for tank
trucks. The commenter further stated that tank trucks are high-risk oil
containers and that to relax the SPCC requirements would not serve to
protect the environment.
2. Response to Comments
    EPA agrees with the commenters who argued that non-transportation-
related tank trucks at a facility subject to the SPCC rule should be
exempted from the sized secondary containment requirements, but should
remain subject to the general secondary containment requirements. EPA
also agrees with commenters who suggested that the exemption from the
sized secondary containment requirements should cover small truck-
mounted oil tanks and other tank trucks, such as bulk chemical trucks
and vacuum trucks. These trucks are similar to mobile refuelers and are
included in the exemption from sized secondary containment when the
truck-mounted oil tank is used to refill a fuel container, an
electrical transformer, or a hydraulic reservoir on a combine or piece
of mining equipment. Similarly, mobile refueling tank trucks at
drilling and workover facilities are included in the exemption from the
sized secondary containment requirements.
    However, EPA disagrees with commenters that the exemption should be
extended to tank cars or rail cars. EPA believes that tank cars and
rail cars typically operate in fixed areas of a facility where sized
secondary containment can be provided, given the land area that is
generally dedicated to a rail spur. Similarly, the exemption is not
being extended to mobile/portable containers because the Agency
believes that sized secondary containment can be provided for
containers that generally operate in fixed locations at a facility, but
are occasionally moved to other fixed locations within the facility for
similar service.
    One commenter suggested that transloading activities, as defined by
DOT at 49 CFR 171.8, should be exempted from the sized secondary
containment requirements. ``Transloading'', which for the purposes of
hazardous materials regulations means the transfer of a hazardous
material from one packaging to another packaging for contained shipment
of the material (see 49 CFR 171.8). This rulemaking, however, focuses
on clarifying SPCC requirements applicable to non-transportation-
related trucks and the specific topic of ``transloading'' falls outside
this scope.
    EPA also disagrees with the commenter who opposed extending
regulatory relief to non-transportation-related tank trucks. EPA
believes that sized secondary containment is not necessary, and in some
cases, not appropriate, for the same reasons the Agency exempted mobile
refuelers from the sized secondary containment requirements. In
addition, the general secondary containment requirement in Sec.
112.7(c) still applies, which provides adequate flexibility for the
prevention of oil discharges as described in Sec.  112.1(b). For
example, active measures to respond to an oil discharge from a
vehicular accident may be used to comply with the general secondary
containment requirement.

J. Security

    EPA is amending the facility security requirements at Sec.
112.7(g) to allow an owner or operator of a facility to tailor his
security measures to the facility's specific characteristics and
location. Thus, this amendment extends the streamlined security
requirements that EPA provided to qualified facilities in the December
2006 SPCC rule amendments (71 FR 77266, December 26, 2006) to all
facilities subject to the security requirements.
1. Revisions to the Security Requirements
    The application of the SPCC security requirements is often
determined by the facility's geographical/spatial factors, such that
there is no ``one-size-fits-all'' method to comply with this
requirement. Therefore, EPA is modifying the security requirements at
Sec.  112.7(g) to allow the owner or operator to design the security
arrangements at the facility to address the specific circumstances that
apply. Thus, this amendment allows an owner or operator to describe in
his SPCC Plan how he will:
     Secure and control access to all oil handling, processing
and storage areas;
     Secure master flow and drain valves;
     Prevent unauthorized access to starter controls on oil
pumps;
     Secure out-of-service and loading/unloading connections of
oil pipelines; and
     Address the appropriateness of security lighting to both
prevent acts of vandalism and assist in the discovery of oil
discharges.
    A facility owner or operator is required to document in his SPCC
Plan how these security measures are implemented. These requirements
replace the more prescriptive fencing and other requirements,
previously found in Sec.  112.7(g)(1) through (5), and allow the
facility owner or operator to determine how best to secure and control
access to areas where a discharge to navigable waters or adjoining
shorelines may originate.
    EPA believes that this amendment will eliminate the need for PE-
certified environmentally equivalent alternatives to the specified
security requirements, because the provision provides the flexibility
for the owner or operator to provide whatever measures are most
appropriate for the facility, as long as

they accomplish the stated security goals. For example, with this rule
revision, the Agency allows the facility owner or operator to determine
how lighting and/or fencing can be used to deter intruders and to
assist in the discovery of oil discharges, or whether taking a
different, site-specific approach is most appropriate. The Agency
believes the added flexibility will not have a negative impact on the
protection of the environment, and that it will assist the regulated
community to better tailor the security requirements to their
particular situation.
    Because the revised requirements at Sec.  112.7(g) apply to all
facilities (excluding oil production facilities), EPA is removing the
security requirements previously found at Sec.  112.6(c)(3) for
qualified facilities; the provision would be redundant.
a. Comments
    Many commenters expressed general support for the amendments to the
security requirements. One commenter noted that it is important to
allow the operator to determine the security and lighting needs for
safety reasons. Another commenter agreed that flexibility is warranted
given increased security measures due to the requirements from the
Department of Homeland Security (DHS) or DOT.
    Still another commenter suggested that EPA should not establish
security requirements because DHS has recently published a rule
affecting the security of farms and is expected to promulgate
additional rules; EPA's efforts may be duplicative. Several other
commenters suggested that EPA avoid duplication of security
requirements if existing security plans are in place as required by
other Federal or state regulations. Finally, one commenter requested
that EPA provide additional clarification to identify the security
benefits of fencing.
b. Response to Comments
    The Agency agrees with the commenters' general support for the
amendment and is finalizing the amendment to the security requirements,
as proposed. With this amendment, the Agency recognizes that there is
no one single approach to ensure proper facility security. The Agency
believes that replacing the more prescriptive fencing and other
security requirements, previously found at Sec.  112.7(g), will allow
the facility owner or operator to determine how best to secure and
control access to oil handling and storage areas at the facility. This
approach provides the flexibility suggested by several commenters to
prevent unauthorized access to the facility using whatever method is
most appropriate. Thus, the owner or operator of the facility can
comply with DHS security requirements, other existing Federal, state or
local security requirements, or an industry recommended practice and
describe these measures in the Plan to comply with the SPCC security
requirement.
    The Agency does not believe it needs to provide additional
clarification to identify the security benefits of fencing, as the
flexibility in this rule allows that determination to be made by the
owner or operator based on his facility's specific circumstances.

K. Integrity Testing

    EPA is amending the requirements at Sec. Sec.  112.8(c)(6) and
112.12(c)(6) to provide flexibility in complying with the bulk storage
container integrity testing requirements. Specifically, EPA is
modifying the provision to allow an owner or operator to consult and
rely on industry standards to determine the appropriate qualifications
for tank inspectors/testing personnel and the type and frequency of
integrity testing required for a particular container size and
configuration. Thus, this action extends the streamlined bulk storage
container integrity testing requirement that EPA provided to qualified
facilities in the December 2006 SPCC rule amendments (71 FR 77266,
December 26, 2006) to all facilities subject to the integrity testing
provision.
1. Amendments to Integrity Testing Requirements
    EPA is replacing the previous regulatory requirements at Sec. Sec.
112.8(c)(6) and 112.12(c)(6) with the integrity testing requirements
promulgated in December 2006 for qualified facilities (Sec.
112.6(c)(4)). This amendment requires a facility owner or operator to:
     Test/inspect each aboveground container for integrity on a
regular schedule and whenever material repairs are made.
     Determine, in accordance with industry standards, the
appropriate qualifications of personnel performing tests and
inspections and the frequency and type of testing and inspections,
which take into account container size, configuration, and design.
    Because the revised requirements at Sec. Sec.  112.8(c)(6) and
112.12(c)(6) apply to all facilities (excluding oil production
facilities), EPA is removing the integrity testing requirements
previously found at Sec.  112.6(c)(4) for qualified facilities; this
provision is redundant. These revised provisions allow, for example, an
owner or operator to adopt integrity testing requirements that are
outlined in industry standards in lieu of integrity testing without the
need for environmental equivalence determinations certified by a PE. An
owner or operator is still required to keep comparison records (records
of inspections and tests kept under usual and customary business
practices will suffice) and to inspect the container's supports and
foundations. The owner or operator also is still required to conduct
frequent inspection of the outside of the container for signs of
deterioration, discharges, or accumulation of oil inside diked areas.
    Under the revised provision, a facility owner or operator may still
deviate from the rule provision, or from an industry standard, if the
alternate measure is equivalent to the environmental protections
provided by the rule requirement (as provided in Sec.  112.7(a)(2)). In
this case, a PE would need to certify the reason for the deviation and
that the alternate measures are environmentally equivalent.
    These amendments apply only to the integrity testing requirements
in Sec. Sec.  112.8(c)(6) and 112.12(c)(6). The bulk storage container
inspection requirements for onshore oil production facilities in Sec.
112.9(c)(3) are not affected by this amendment.
a. Comments
    Many commenters expressed general support for the amendments to the
integrity testing provisions. Some commenters suggested that a
requirement for visual inspections with weekly or monthly frequency
would be inappropriate because such a schedule is impracticable; they
agreed that the frequency and documentation of visual inspections
should be based upon PE judgment and site-specific conditions. Other
commenters agreed that the PE should determine the appropriate testing/
inspection requirements for each container and that industry standards
should be used as appropriate.
    Two commenters suggested that the amendments are too prescriptive,
and not performance-based, and that the amendment detracts from a PE's
ability to assess site-specific conditions. Other commenters disagreed
with EPA's reference to industry standards in setting environmental
regulations and objected to the use of the term ``industry standards''
for inspector qualifications and integrity testing methods because
these standards are unnecessarily strict.
    In addition, several other approaches were suggested by commenters.
One commenter suggested that tank integrity testing criteria should be
limited to

visual inspections. One commenter suggested extending ``environmental
equivalence of visual-only testing to all elevated tanks and tanks on
release prevention barriers (RPBs), regardless of volume.'' One
commenter suggested that EPA should allow the owner or operator of a
facility with indoor tanks to adopt different inspection requirements
(not outlined by industry standards); the facilities would still have
to keep records and perform monthly visual inspections, but not be
required to hire third-party inspectors.
    One commenter suggested that EPA should codify the PMAA standards;
these standards allow operators, who are not certified tank inspectors,
but who have training and experience to visually inspect tanks at
petroleum production facilities, refineries, and terminals, to conduct
such inspections. Several other commenters specifically recommended
using standards, such as Steel Tank Institute (STI) SP001 and American
Petroleum Institute (API) Standard 653. One commenter suggested that
EPA should eliminate the phrase ``qualified personnel'' from the
amended rule text. A few other commenters recommended that EPA
incorporate API/EPA litigation settlement language concerning
inspection requirements for smaller containers, specifically allowing
visual inspection in certain site-specific circumstances, into the
regulation at Sec.  112.12(c)(6).
b. Response to Comments
    EPA agrees with those commenters who supported amending the
integrity testing requirements at Sec. Sec.  112.8(c)(6) and
112.12(c)(6). EPA disagrees that the amendments are too prescriptive.
The amended integrity testing requirements are intended to provide more
flexibility to the owner or operator of an SPCC-regulated facility in
the selection of the appropriate scope and frequency of integrity
testing for all classes of bulk storage containers, including indoor
and outdoor tanks and portable containers (such as 55-gallon drums and
totes). The July 2002 rule revisions (67 FR 47042, July 17, 2002)
amended the integrity testing requirements in Sec. Sec.  112.8(c)(6)
and 112.12(c)(6) to require visual inspections, plus some other form of
testing, for each bulk storage container 55 U.S. gallons or greater;
this amendment modifies this requirement to allow the owner or operator
to determine the frequency and type of testing and inspections that are
appropriate, according to site-specific conditions (for example, type
and age of tanks, condition of tanks, and overall tank/secondary
containment configuration), while also considering relevant integrity
testing standards.
    EPA maintains that inspection of containers storing oil in
accordance with recognized industry inspection (integrity testing)
standards is an important aspect of oil spill prevention. Industry
standards are technical guidelines created by experts in a particular
industry for use throughout that industry. These guidelines assist in
establishing common levels of safety and common practices for
manufacture, maintenance, and repair. Created by standard-setting
organizations using a consensus process, the standards establish the
minimum accepted industry practice. EPA recognizes that some industry
standards now provide differentiated inspection requirements for
various container sizes and configurations that may allow for visual
inspection of certain types of oil storage containers, such as drums
and totes and certain tanks up to 5,000 U.S. gallons. EPA's amendments
to the integrity testing requirements are intended to allow the use of
these industry standards without the need for environmental equivalence
discussions in an SPCC Plan when a recognized industry standard is
followed. EPA notes that use of a particular standard is voluntary;
however, when a standard (or any part of a standard) is incorporated
into a facility's SPCC Plan, then adherence to that standard (or part
of a standard) is mandatory for implementation of the SPCC Plan.
    It should also be noted that these amendments do not restrict the
use of environmental equivalence, including establishing differentiated
inspection requirements for shop-built tanks versus field-erected
tanks, and other alternatives suggested by commenters. Owners or
operators still have the ability to develop alternative,
environmentally equivalent integrity testing procedures for bulk
storage containers in accordance with Sec.  112.7(a)(2). These
equivalent measures must be in accordance with good engineering
practice and are subject to certification by a PE.
    EPA described the environmental equivalence flexibility available
to a PE with respect to integrity testing in a letter to the PMAA.\5\
While the policy and approach for the use of environmental equivalence
described in this letter is still valid, the approach taken in this
final rule amending the integrity testing requirements allows
inspection requirements outlined in industry standards to be used
without the need for environmental equivalence determinations certified
by a PE. A major industry standard for integrity testing (STI SP001)
was modified since the letter to PMAA was written to outline ``good
engineering practice'' for integrity testing of shop-built containers.
This may affect a PE's decision whether to certify an environmentally
equivalent approach as described in the PMAA letter, or to follow the
industry standard as provided by the amendment finalized in this rule.
---------------------------------------------------------------------------

    \5\ 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 response to the comment that EPA should clarify acceptable
industry standards for all integrity testing procedures, the Agency
provided a list of organizations that may be helpful in the
identification and explanation of industry standards in the Federal
Register notice for the July 2002 SPCC rule revisions (67 FR 47058,
July 17, 2002). In addition, EPA also provided an overview and
description of the scope and key elements of pertinent industry
standards in Chapter 7 of the SPCC Guidance for Regional Inspectors.
While the Agency is allowing industry to rely on industry standards to
assess the inspection and integrity testing scheme, EPA does not
believe that any specific industry standards should be incorporated, by
reference, into the rule. As EPA noted in the preamble to the July 2002
SPCC rule revisions (67 FR 47070, July 17, 2002), while facility owners
or operators should look to specific industry standards as a guide for
preparing SPCC Plans, EPA does not believe that incorporating specific
standards into this rule is appropriate. Such incorporation freezes
standards into rules, which may become outdated or obsolete. The
decision in every case as to the applicability of any industry standard
will be one for the PE, or the owner or operator of the facility who
self-certifies an SPCC Plan.
    Finally, commenters suggested allowing the use of alternative
inspection techniques and the qualification requirements for
inspectors; however EPA believes that these amendments are consistent
with industry standards related to integrity testing.

L. Animal Fats and Vegetable Oils

    Under this final rulemaking, EPA is differentiating the integrity
testing requirements at Sec.  112.12(c)(6) for an owner or operator of
a facility that handles certain types of AFVOs.
    EPA is providing the PE or an owner or operator self-certifying an
SPCC Plan with the flexibility to use a visual

inspection program for integrity testing that is appropriate for
containers that store AFVOs that meet certain criteria. This
flexibility applies to those bulk storage containers that are subject
to the applicable sections of the Food and Drug Administration (FDA)
regulation 21 CFR part 110, Current Good Manufacturing Practice in
Manufacturing, Packing or Holding Human Food, and that meet the
following additional criteria: (1) The containers are elevated; (2) the
containers are made from austenitic stainless steel; (3) the containers
have no external insulation; and (4) the containers are shop-built.
That is, an owner or operator with containers meeting these criteria
can use visual inspection of these containers equivalent to industry
standards, in lieu of the revised integrity testing requirements found
at Sec.  112.12(c)(6), without having to make an environmental
equivalence determination in accordance with Sec.  112.7(a)(2). The
owner or operator is required to document the procedures for
inspections and testing in their SPCC Plan, including those for AFVO
bulk storage containers that are eligible for the differentiated
requirements described in this amendment.
1. Differentiated Requirements for AFVOs
    Stakeholders have commented that AFVOs merit differentiated
requirements under the SPCC regulation. In particular, the regulated
community has pointed to differences between the toxicity and
biodegradation profiles of AFVOs and those of petroleum oils. Because
of these claims, and in response to the Edible Oil Regulatory Reform
Act (EORRA), the Agency has on several occasions formally requested
information and supporting scientific data that would inform such a
determination. (See 72 FR 58400, October 15, 2007, for a discussion of
EPA's data review.) EPA then considered whether an alternative approach
to differentiation that is not based on the oil's toxicity and its
inherent physical/chemical properties, but rather based on the way
these oils are stored and handled at a facility would be appropriate.
EPA focused specifically on the integrity testing requirements for bulk
storage of AFVOs to address concerns raised by the regulated community.
As a result, this final rule establishes differentiated integrity
testing requirements for certain bulk storage containers that store
AFVOs and that meet specific design and operational criteria.
    Because this is an alternative, EPA is not requiring that an owner
or operator use this option. The alternative provides additional
flexibility in meeting the provisions set forth in Sec.  112.12(c)(6)
to address stakeholder concerns. In addition, an owner or operator may
make an environmental equivalence determination, in accordance with
Sec.  112.7(a)(2) for integrity testing of a bulk storage container.
a. Comments
    Several commenters expressed support for EPA's efforts to reduce
the regulatory burden to facilities storing AFVOs because these
substances are different from petroleum oils. One commenter appreciated
EPA's clarification regarding reasonable expectation of discharge for
AFVOs that are solid or semi-solid at ambient temperature and pressure.
However, one commenter suggested the current criteria are too limiting
to provide relief, because many AFVO storage containers would not meet
the criteria and thus, would not be eligible. Another commenter, on the
other hand, indicated the proposal was overly lax and should be
reconsidered.
b. Response to Comments
    EPA notes that this alternative option is based not on the
differences between petroleum oil and AFVOs, but on the way these oils
are stored and handled at a facility. With regard to the comment about
certain AFVOs solidifying at room temperature, EPA notes that the
applicability of the SPCC rule must be made in accordance with the
provisions set forth in Sec.  112.1. The Agency notes 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. However, if a facility owner or operator determines that
there is a reasonable expectation to discharge oil to navigable waters
or adjoining shorelines for any single oil container, all oil
containers at the facility are subject to the rule's requirements,
except as otherwise exempted.
    The Agency acknowledges comments on the criteria being both too
limiting and also overly lax, but EPA believes that the criteria
developed strikes the appropriate balance between regulatory
requirements and environmental protection.
2. Differentiation Criteria: Containers Subject to FDA Regulations--21
CFR Part 110
    The differentiated integrity testing requirements finalized in this
action are available only to those bulk storage containers that are
subject to the applicable sections of the FDA regulation at 21 CFR part
110. When developing an integrity testing program for AFVO bulk storage
containers, FDA rule requirements may substitute for an industry
standard. Applicable requirements within 21 CFR part 110, when taken
together with the additional criteria in this amendment, serve as
equivalent alternative measures that include the main elements of an
integrity testing program under the SPCC regulation. The minimal
elements for an integrity testing program can be separated into three
main structural integrity areas: (1) Container foundations, (2)
container support structures, and (3) the container itself.
     Container foundations. FDA requires that facilities be
constructed in such a manner that the floor, walls, and ceilings be
adequately cleaned and kept clean and in good repair (21 CFR
110.20(b)(4)). Bulk storage containers that sit atop floors that fall
under this requirement are expected to be maintained and kept in good
repair.
     Container support structure. FDA requires all plant
equipment, including the container's structural supports, to be
designed of such material and workmanship as to be adequately
cleanable, and for it to be properly maintained (21 CFR 110.40(a)).
Periodic maintenance of the structural support(s) of a bulk storage
container is also an oil spill preventive measure.
     Container itself. FDA requires the design, construction,
and use of equipment to preclude the adulteration of food with, among
other potential contaminants, metal fragments (21 CFR 110.40(a)). FDA
further requires that food contact surfaces be corrosion resistant when
in contact with food. FDA also requires equipment that is in the
manufacturing or food-handling area and that does not come into contact
with food must be constructed and kept in a clean condition (21 CFR
110.40(c)). The exterior surface of bulk storage containers that are
located in the manufacturing or food-handling area and that are subject
to this requirement are expected to be maintained to a higher standard
than other bulk storage containers, which are not subject to a similar
requirement.

a. Comments
    One commenter agreed with the logic that container foundations and
support structures meeting the FDA requirements may also meet the
intent and practicality of the SPCC requirements. Another commenter
agreed that offering options for environmental equivalence is a good
step, but suggested that the options should go beyond the FDA standards
and include other industry standards that offer equivalent protection.
b. Response to Comments
    EPA agrees with those comments supporting the use of FDA's
regulations as a basis for establishing a qualifying criterion for
differentiated integrity testing requirements for AFVOs. The Agency
also agrees that compliance with industry standards and requirements
other than 21 CFR part 110 may also meet the SPCC inspection,
evaluation, and testing requirements. In the preamble to the July 2002
SPCC rule amendments, EPA provided examples of industry standards that
may constitute good engineering practice for assessing the integrity of
different types of containers for oil storage (67 FR 47120, July 17,
2002). Additionally, the SPCC rule provides flexibility regarding the
integrity testing requirements of bulk storage containers, as long as
the alternatives provide equivalent environmental protection per Sec.
112.7(a)(2).
3. Differentiation Criteria: Elevated Bulk Storage Containers
    The differentiated integrity testing requirements finalized in this
action are available only to those bulk storage containers that are
elevated. Food equipment, by design, is generally elevated above the
floor using legs or another means of support so that the space between
the equipment and the floor can be cleaned. For the purposes of oil
spill prevention, elevated bulk storage containers allow visual
inspections for oil discharges all around the container. An elevated
bulk storage container used for food oils also facilitates complete
drainage because they are designed such that the oil is withdrawn from
the lowest point in the container, so that foreign substances or
materials do not accumulate and contaminate the food oil. For the
purposes of oil spill prevention, self-draining containers operating
using gravity flow allows complete drainage and prevents substances
other than oil (such as water) from accumulating at the bottom of the
container, thus minimizing corrosion. EPA believes that the self-
drainage design, in conjunction with the applicable regulatory
requirements, is likely to prevent the corrosion of the internal
contact surface in food-grade AFVO bulk storage containers.
a. Comments
    Several commenters suggested including non-elevated containers in
EPA's criteria for the integrity testing provision. Commenters
reference non-elevated food industry tanks that are positioned on pads
so long as the area can be adequately cleaned and kept in good repair,
and vessels that incorporate a bottom-discharge design which eliminates
the build-up of water and materials in the bottom of the tank and
prevents corrosion.
b. Response to Comments
    While EPA recognizes similarities between elevated and bottom-
discharge designs, the Agency does not agree with the request to expand
the scope of the AFVO alternative criterion to include non-elevated
bulk storage containers. Although some food industry facilities may use
non-elevated tanks, food equipment is generally designed to be elevated
(for example, to stand on legs); this elevated design allows the space
between the plant equipment and the floor to be easily cleaned. FDA
also recommends that all equipment should be so installed and
maintained so as to facilitate cleaning of the equipment and of all
adjacent spaces.
    Bottom-discharge designs similarly eliminate the build-up of water
and materials in the bottom of the tanks. However, the Agency believes
that having the tanks elevated facilitates maintenance, inspections,
and monitoring for oil discharges all around the bulk storage
container, all of which are critical in allowing for the differentiated
integrity testing requirements. It is important to note that the
differentiated requirements are an available alternative. The owner or
operator may choose to include bulk storage container designs that
provide equivalent environmental protection in their SPCC Plan, in
accordance with Sec.  112.7(a)(2). For example, bulk storage containers
built according to industry standards (such as 3-A Sanitary Standards)
may provide additional features that facilitate visual inspection (such
as manholes for internal inspection) that may provide comparable
environmental protection.
4. Differentiation Criteria: Containers Made From Austenitic Stainless
Steel
    The differentiated integrity testing requirements finalized in this
action are available only for those bulk storage containers that are
made of austenitic stainless steel. EPA believes that non-homogenous
container systems (for example, containers with external insulation, an
external coating, a mild-carbon steel shell, an internal liner) are
more complex than homogenous container systems (such as containers
constructed solely of austenitic stainless steel) and may require
additional inspection measures to ensure the integrity of the
container. Furthermore, austenitic stainless steel containers are often
used because cleaning agents and acidic detergents used to clean food
and non-food contact surfaces can be corrosive if used on incompatible
surfaces. Therefore, EPA is limiting this alternative approach for
integrity testing to AFVO bulk storage containers made of austenitic
stainless steel.
a. Comments
    A commenter agreed with EPA to limit the alternative integrity
testing requirements to austenitic stainless steel tanks and vessels.
However, several commenters suggested that EPA consider including
carbon steel tanks in the eligibility criteria for the flexibility to
determine the scope of integrity testing, especially considering the
widespread use of these containers and the consistency with EPA's
current SPCC guidance. A commenter also cited the cost difference
between a mild steel tank (commonly used in the industry) and a
stainless steel tank.
b. Response to Comments
    EPA agrees with the commenter who supported limiting the
alternative integrity testing requirements to bulk storage containers
made of austenitic stainless steel for the reasons stated above. As one
commenter noted, carbon steel tanks that are interior-lined may pose
more significant inspection requirements because the interior lining
may fail to adhere to the tank, and not provide the intended protection
of the carbon steel. Other commenters believed that limiting
alternative testing requirements to austenitic stainless steel would
limit the usefulness of the alternative option. While this assertion
may be correct, the Agency nevertheless believes that expanding this
alternative to include carbon steel containers is not appropriate,
because non-austenitic stainless steels, including but not limited to
carbon steel, are not as inherently corrosion resistant as austenitic
stainless steel to the materials stored or handled in them (that is,
they are more susceptible to internal corrosion) or to the operating
environment (that is, they are more

susceptible to external corrosion). Furthermore, non-austenitic
stainless steel containers may require a liner; these liners can fail
or delaminate, promoting the potential for internal or external
corrosion. Thus, the Agency believes the austenitic stainless steel
criterion is an integral part of the criteria for differentiated
requirements. Again, these differentiated requirements are an available
alternative that the owner or operator may choose to include in their
SPCC Plan. The owner or operator may choose to make an environmental
equivalence determination, in accordance with Sec.  112.7(a)(2), for
similar corrosion resistant materials.
5. Differentiation Criteria: Containers With No External Insulation
    The differentiated integrity testing requirements finalized in this
action are available only to those bulk storage containers with no
external insulation. The Agency believes that inspections based on
frequent monitoring of the exterior surface of a bulk storage container
for corrosion and/or other mechanisms that can threaten a container's
integrity is a minimum criterion for an alternative measure that
provides equivalent environmental protection. External insulation
covering the outside of a bulk storage container acts as a physical
barrier to effective visual examination of the exterior surface. If not
properly sealed, insulating materials covering the exterior surface of
a bulk storage container and/or any associated equipment and piping can
become damp. Insulation that retains moisture and that is adjacent to a
container's exterior surface can cause significant corrosion, which may
threaten the integrity of the container.
    EPA is unaware of any sanitation provision or regulatory
requirement that requires an inspection between the insulation and the
exterior surface of a bulk storage container. Furthermore, the Agency
does not know of any established industry methods or procedures, or
industry standards specific to AFVOs, to evaluate the exterior surface
of a bulk storage container that is covered by insulation. Therefore,
EPA believes only containers with no external insulation should be
eligible for this alternative for integrity testing.
a. Comments
    One commenter stated that effective visual examination is difficult
for tanks with external insulation; therefore, the commenter agreed
that the alternative integrity testing requirements should only be
applied to tanks with no external insulation. However, several
commenters suggested that EPA revise its AFVO alternate integrity
testing criteria to allow insulated or jacketed tanks to be used under
this amendment, as long as there are sufficient access ports installed
in key locations to observe an appropriate quantity of the exterior of
the tank. Commenters cite the need for this type of tank to maintain
product viscosity. Commenters also note that there is an established
industry practice allowing for visual inspection of insulated tanks. In
addition, one commenter suggested insulation is very prevalent in the
industry and the increased energy cost for non-insulated containers
would be prohibitive.
b. Response to Comments
    The Agency agrees with those commenters that supported limiting the
alternative criterion to bulk storage containers that have no external
insulation because external insulation is a barrier to visual
examination, making effective visual inspection difficult. At the same
time, EPA recognizes that some AFVO bulk storage containers need
insulation to maintain temperatures. However, the Agency disagrees with
the commenters that suggested this criterion should be expanded to
include jacketed tanks that have sufficient access ports installed at
key locations.
    The Agency believes it is important that the criteria for
differentiated requirements account for the effect of corrosion under
the thermal insulation, including but not limited to, the effect of
moisture, chloride leaching, and/or temperature. The effects of
corrosion under thermal insulation are well documented in the technical
literature. (See, for example, National Association of Corrosion
Engineers (NACE) Standard RP0198-2004.) Thus, because external
insulation covering the outside of a bulk storage container acts as a
barrier to effective visual examination, EPA believes this is a minimum
criterion for this alternative, the Agency is limiting the alternative
criterion to those containers that have no external insulation.
However, bulk storage containers that store food oil and are built
according to industry standards (such as 3-A Sanitary Standards) may
have additional design features that provide equivalent environmental
protection and thus meet the intent of the criteria. For example,
container configurations built according to 3-A Sanitary Standards
typically include ``manholes'' that facilitate complete access for
examination of the entire internal surface. These containers also
typically have an outer shell (that is, a double wall) that is sealed
completely (for example, with completely welded seams) so that the
container integrity is maintained by removing any potential for the
insulation to be exposed to moisture. In addition, some AFVO bulk
storage containers that are refrigerated may suppress corrosion
potential, whereas containers that are heated to facilitate oil flow
may promote corrosion potential. The Agency believes the rule provides
the facility owner or operator with significant flexibility to make an
environmental equivalence determination, in accordance with Sec.
112.7(a)(2), which may be used to address those insulated bulk storage
containers that have alternative configurations, including access
ports.
    Finally, the Agency disagrees with those commenters who suggested
that the alternative criterion should include insulated containers
because they are prevalent in the industry or because the increased
energy cost for non-insulated containers would be prohibitive. The
Agency is not mandating the use of any type of container, but rather is
allowing flexibility for the owner or operator of facilities that have
containers that meet the alternative criterion.
6. Differentiation Criteria: Shop-Fabricated Containers
    The differentiated integrity testing requirements finalized in this
action are available only to shop-fabricated containers (i.e., shop-
built). Shop-fabricated containers are those containers that are shop-
assembled in one piece before they are transported to the installation
site; this limits the maximum capacity of the container so that it can
be transported over the road by truck. Shop-fabricated containers
generally have lower volume capacities, smaller tank diameters, and a
fewer number of welds than field-erected containers, and they are
typically comprised of a single type of material with a single wall
thickness.
    Field-erected (i.e., field-constructed) containers, on the other
hand, can store much larger volumes of oil. They have larger container
capacities because individual pieces of the container can be
transported to and assembled at the installation site. Because of their
greater size and complexity, field-erected containers generally have
more stringent engineering requirements than shop-fabricated
containers, which would need to be considered in developing an
appropriate integrity testing program. For example, field-erected
containers may have variable shell-wall

thicknesses, and/or be comprised of different materials to account for
variations in the stresses caused by hydrostatic pressure. These field-
erected containers generally have a significantly greater number of
welds as compared to a shop-fabricated container because they are
fabricated on-site from individual pieces. The stress on the container
walls and joints is greater as the diameter and/or height of the
container increases. A brittle fracture evaluation of a field-erected
container may be necessary if the thickness of the shell wall is above
a certain value and the container undergoes a repair, alteration,
reconstruction, or a change in service that might affect the likelihood
of a discharge or failure (Sec.  112.7(i)).
    This option, therefore, is limited to shop-fabricated containers
because they are simpler in design and construction (they are typically
subject to less stress, have fewer welds, and are less likely to be
subject to brittle fracture failure) than field-erected containers. The
Steel Tank Institute's (STI) SP001, Standard for the Inspection for
Aboveground Storage Tanks, establishes the scope and frequency for
visual inspections of shop-fabricated containers. This rule amendment
is consistent with past regulatory guidance and current industry best
practices for this particular class of bulk storage containers.
a. Comments
    One commenter suggested that EPA should not limit consideration of
alternative integrity testing to only shop-fabricated containers. The
commenter indicated that while field-erected tanks are larger than
shop-fabricated tanks, they are designed to meet industry standards;
there are no data to support a higher failure rate; and industry
standards for visual inspections apply to field-erected tanks.
    Two commenters also suggested that EPA modify the rule to clarify
that tanks that are pre-fabricated in sections, and then field-erected
in a limited number of places, should qualify for the alternative
provisions, since many AFVO facilities utilize these tanks and there
are fewer field welds than for a completely field-erected tank. In
addition, one commenter suggested that these partial field-assembled
tanks are not necessarily the large capacity containers that EPA may
seek to exclude from the integrity testing provision.
b. Response to Comments
    For the reasons stated above, EPA believes it is appropriate to
limit the alternative integrity testing criterion to shop-fabricated
containers: They are simpler in design and construction in relation to
field-erected containers, including those bulk storage containers that
are partially field assembled. EPA believes this criterion
distinguishes between more complex bulk storage containers, which may
require greater integrity testing scrutiny, and smaller, less complex
containers.
    EPA disagrees with the commenter who questioned whether this
criterion was relevant, by asserting that the industry standards for
visual inspection apply to field-erected tanks. While visual inspection
may be a component of an integrity testing program for field-erected
tanks, EPA is unaware of any industry standard which limits integrity
testing for a field-erected bulk storage container to visual inspection
only. Industry standards typically incorporate visual inspection into a
broader integrity testing program which typically also includes non-
destructive testing on a regular schedule and includes inspection of
the tank's shell and bottom plate. EPA believes this criterion, in
combination with the others, limits the applicability of the integrity
testing relief to those AFVO containers that, because of equipment
design and handling requirements already provide environmentally
equivalent protection. In contrast, containers that are partially shop-
fabricated and then finalized in the field may be subject to additional
inspection requirements to bring these containers into service and for
continued service beyond fully shop-fabricated containers. It should
also be noted that the rule provides sufficient flexibility to make an
environmental equivalence determination, in accordance with Sec.
112.7(a)(2), which may be used to address fielded-erected containers
that may vary in complexity, including field-erected containers
comprised of pre-fabricated sections.
7. Required Recordkeeping
    The SPCC regulations require that inspections and tests be
conducted in accordance with the written procedures that the owner or
operator or the certifying PE develop for the facility and that records
of inspections and testing be kept with the SPCC Plan in accordance
with the recordkeeping provisions of Sec.  112.7(e). EPA believes that
visual inspection that is part of the periodic maintenance of the bulk
storage container's support and foundation must be documented. Records
of inspections and tests kept under usual and customary business
practices will suffice. To take advantage of this alternative option
for AFVOs, the owner or operator or PE should refer to the appropriate
requirements under 21 CFR part 110 to develop an appropriate
inspection, evaluation, and testing program for an SPCC-regulated
facility.
    No comments were submitted in reference to this requirement.
8. Other Suggested Criteria and Options
    EPA received a number of comments with suggestions for other
approaches to provide integrity testing relief to certain AFVO
containers.
a. Comments
    Two commenters suggested extending the testing frequency for AFVO
containers based upon the internal corrosion differences between AFVO
and petroleum-based oils. Other commenters suggested that EPA exempt
from the integrity testing requirements storage containers used for
AFVO in compliance with the secondary containment provisions and that
undergo visual inspection on a routine basis. The commenters noted that
a leak would be discovered before it could escape into the environment
due to the inspection frequency.
    Another commenter requested that EPA use the same approach for AFVO
as detailed in the SPCC Guidance for Regional Inspectors (Chapter 7)
where it is explained that other design approaches, other industry
standards, or other good engineering practices may be used alone or as
a `hybrid' program where equivalent results in meeting the SPCC
requirements is obtained. The commenter suggested that the language
should be expanded to allow the same alternatives for similar
containers of all oil covered by the regulation.
    One commenter recommended that EPA require a certified external
tank and vessel inspection every ten years for tanks/vessels greater
than 10,000 gallons capacity when non-hazardous substances are stored
and annual inspections are conducted by a preventive maintenance
inspector who is familiar with the equipment and the FTPI 2007-1
standard.
    Several commenters suggested exempting milk storage containers from
SPCC requirements based on additional regulations which address storage
for on-farm milk storage containers. Specifically, these commenters
identified the Grade ``A'' Pasteurized Milk Ordinance (PMO), which
addresses milk intended for human consumption.
b. Response to Comments
    Regarding the comment on extending inspection frequency for AFVO