COMMENT AND RESPONSE DOCUMENT

Oil Pollution Prevention; SPCC Plan Requirements - Amendments

40 CFR Part 112

November 20, 2008

U.S. Environmental Protection Agency

Office of Emergency Management

INTRODUCTION

Purpose of This Document

The purpose of this document is to provide complete responses to
comments on the 2007 proposed rule (40 CFR part 112) to revise the Oil
Pollution Prevention and Response rule, also known as the Spill
Prevention, Control, and Countermeasure (SPCC) rule (40 CFR part 112),
promulgated under the Clean Water Act.

Organization of This Comment and Response Document

To develop this document, EPA reviewed the submissions made to public
docket number EPA-HQ-OPA-2007-0584.  EPA organized the submission
comments based on the topics they addressed in the proposed rule, which
had been published in the Federal Register on October 15, 2007 (72 FR
198).  Comments submitted to the public docket for this rulemaking
appear in their entirety at http://www.regulations.gov, identified by
Docket number “EPA-HQ-OPA-2007-0584.”

EPA organized the comments into general categories and subcategories,
and responds to each in turn.  Several comment excerpts are provided, in
addition to responses for each major issue.  In most cases, comment
excerpts that simply state support for the proposed revisions are not
included.  Instead, the Docket Number of each submission is listed in
parentheses in the Comments section for each category addressed. The
Docket Number was assigned to each submission by the Federal Docket
Management System (FDMS) based on the date the submission was received.

The comment excerpts that are included in this document are taken
verbatim from the submissions received by the Federal Docket Management
System.  Comments that make similar statements are grouped and one
response is provided for the group.  EPA responds to the remaining
comments individually.

EPA also received comments that addressed issues outside the scope of
the proposed rule and the associated request for comment.  While EPA
appreciates and will consider these comments, EPA will not respond to
them in this document.

The following table lists all comments received by the Federal Docket
Management System for docket EPA-HQ-OPA-2007-0584.  The Document Number,
assigned by FDMS to each comment, begins with 19 because other types of
documents were included in the docket prior to the docket posting the
first public comment.  The table also lists each commenter’s name and
the organization with which the commenter claims affiliation, if
provided.  Multiple signatories to a single document are listed in the
last column.

The following table lists all comments received by the Federal Docket
Management System for docket EPA-HQ-OPA-2007-0584.

FDMS ID	First Name	Last Name	Organization

19	J.	Bargmann

22	Robert	McCrary	Clemson University

23	Brad	Rodgers	FMSM Engineers, Inc.

24	Kaara	Smith	Dove Environmental Management

25	Brad	Rodgers	FMSM Engineers, Inc.

26	Brad	Rodgers	FMSM Engineers, Inc.

27	Anonymous	Anonymous

28	Brad	Rodgers	FMSM Engineers, Inc.

29	William	Decker	Environmental Business Partners, LLC

30	Robert	Garfield	Food Industry Environmental Council

31	G.H.	Holliday	Holliday Environmental Services, Inc.

32	S.	Douglas

33	E.	Douglas

34	S. 	Wolf

35	S. 	Wolf

36	G.	Hibbs

37	Robert	Tadsen	The Fertilizer Institute

38	Keith	Epperson	American Feed Industry Association

39	Devin S.	Hodge	Argonne National Laboratory

40	Gary	LeMoine	PPM Energy

41	L.	Nickell

42	Jon	Joyce	First Electric Cooperative Corporation (FECC)

43	Pamela F.	Faggert	Dominion Resources Services, Inc.

44	John	Rodgers	Nodak Electric Cooperative

45	Douglas R.	Busdeker	The Andersons, Inc.

46	Ryan G.	Dolan	Vorys, Sater, Seymour and Pease LLP

47	Renee	Pinel	Western Plant Health Association (WPHA)

48	Mark	Haagenstad	Los Alamos National Security, LLC

49	Jimmie	Walker	Helena Chemical Company

50	Clay	Detlefsen	International Dairy Foods Association

51	Glenn	Roberts	Flavor and Extract Manufacturers Assocation of the
United States

52	Robert H.	Wills, Jr.	Crucible Specialty Metals Corp.

53	James M.	Loar	Wilbur-Ellis Company

54	L. Davis	Phaup, III	Old Dominion Electric Cooperative

55	John P.	Campbell	First Light Power Resources

56	Steve	Hensley	USA Rice

57	Ross	Wilson	Texas Cattle Feeders Association

58	Jackie	Klippenstein	Agriculture Coalition on the Spill Prevention,
Control and Countermeasure rule

59	Allan	Oracion	EnergyUnited

60	Clayton	Huseman	Kansas Livestock Association

61	Douglas	Greenhaus	National Automobile Dealers Association

62	Steve	Patterson	Southern States Cooperative

63	Mike	Roddy	Seminole Electric Cooperative, Inc.

64	Gus	Aljure	Washington Closure Hanford LLC

65	Donald	Schregardus	Department of Navy (Installations and Environment)

66	Patrick	Flowers	Xcel Energy, Inc.

67	Steve	Hensley	USA Rice Federation

68	Robert	Looney	CHS Inc

69	Anonymous

70	Steven	Jarvis	Forest Resources Association

71	Gus	Aljure	Washington Closure Hanford LLC

72	David 	Darling	National Paint & Coatings Association

73	Mark	Dopp	American Meat Institute

74	Jessica	Steinhilber	Airports Council International - North America

75	Mickey	Carter	ConocoPhillips

76	Gregory	Russell	Ohio Oil and Gas Association

77	James 	Stine	National Rural Electric Cooperative Association

78	Pamela A.	Lacey	American Gas Association

79	Wade	Moser	North Dakota Stockmen's Association

80	Ralph	Andersen	Nuclear Energy Institute

81	James	Hodgens

82	James	Hodgens	Hodgens Engineering Service

83	David 	Case	Environment Technology Council

84	Daniel	Moss	Synthetic Organic Chemical Manufacturers Assocation
(SOCMA)

85	Angie	Burckhalter	Oklahoma Independent Petroleum Association (OIPA)

86	Lee	Fuller	Independent Petroleum Association of America (IPAA) and
multiple signatories

87	Henry	Hamanishi	J.R. Simplot Company

88	Terry	Behrman	Alliance of Automobile Manufacturers

89	Steven	Crockett	US Nuclear Regulatory Commission

90	Robert	Garfield	Food Industry Environmental Council

91	J.P.	Blackford	American Public Power Assocation

92	Jerry 	Schwarts	American Forest and Paper Association

93	Michael 	Fusco	Safety Kleen

94	John 	Robitaille	Petroleum Assocation of Wyoming

95	Douglas 	Fulle	Oglethorpe Power Corporation

96	James 	Slutz	US Department of Energy

97	James 	Boswell	Peabody Energy

98	James	Thrift	Agricultural Retailers Association

99	Guy	Gockley	First Energy

100	Anda	Ray	Tennessee Valley Authority

101	Shirley	Neff	Association of Oil Pipelines

102	Keith	Epperson	American Feed Industry Association

103	Nicholas 	DeMarco	West Virginia Oil and Natural Gas Association

104	Jackie	Klippenstein	Agriculture Coalition on the Spill Prevention,
Control and Countermeasure rule

105	Charlie	Burd	Independent Oil and Gas Association of West Virginia,
Inc. (IOGA)

106	Timothy	Couch	Indiana Statewide Association of Rural Electric
Cooperatives Regulatory Program

107	Ken	Nobis	Michigan Milk Producers Association

108	William	Whitsitt	American Exploration and Production Council (AXPC)

109	Craig	Head	Nebraska Farm Bureau Federation

110	Jeff	Spillyards	Entergy Services, Inc.

111	Roger	Claff	American Petroleum Institute

112	Nancy	Young	Air Transport Association

113	Michael 	Walls	American Chemistry Council

114	Douglas	Greenhaus	National Automobile Dealers Association

115	Jim	Magagna	Wyoming Stock Growers Association

116	Mickey	Carter	ConocoPhillips

117	Michael 	Walls	American Chemistry Council

118	 	 	Natural Resources Defense Council; Sierra Club; Earthjustice

119	Jerrald	Moore	Georgia Transmission

120	Multiple Signatories	Multiple Signatories	On behalf of the dairy
industry, the National Milk Producers Federation, the National Council
of Farmer Cooperatives and other dairy interests

121	Jon	Devine	Utility Solid Waste Activities Group (USWAG)

122	Adam	Haynes	Texas Independent Producers and Royalty Owners
Assocation

123	Leslie	Savage	The Railroad Commission of Texas

124	David L.	Wagger	Institute of Scrap Recycling Industries, Inc.

125	James	Hadley

126	David	Fairfield	National Grain and Feed Association, Grain Elevator
Processing Society

127	Justin	Massey	Trustees for Alaska

128	T. Mayes	Starke	Georgia-Pacific Corporation, LLC

129	Lori	Wrotenbery	Oil and Gas Conservation Division, Oklahoma
Corporation Commission

130	Leslie	Kaufman	Kansas Cooperative Council

131	R. Gary	Fore	National Aslphalt Pavement Association

132

133	Mark	Bohrer	North Dakota Industrial Commission, Oil and Gas Division

134	Steve	Lomax	Corn Refiners Association

135

136

137	Stephanie	Olson	Marathon Oil Company

138	Justin	Massey	Trustees for Alaska

139	Merrill E.	Bishop	Trans Environmental Systems, Inc.

140

141	Anne	Coan	The North Carolina Farm Bureau Federation

142	Leah F.	Pilconis	The Associated General Contractors of America

143	Jeffrey	Leiter	The Independent Lubricant Manufacturers Association

144	 	 	Alaska Wilderness League

145

146	Jean	Cameron	Oil Spill Task Force

147	Allan 	Oracion	EnergyUnited

148	Bobby	Davis

149	Bobby 	Davis

150	Stephanie	Reid	New Mexico Oil and Gas Association

151	Anthony 	Grieggs	Los Alamos National Laboratory

152	Heidi 	McKenzie	Ford Motor Company

153	Debbie	Hastings	Texas Oil and Gas Association

154	Tammie 	Candelario	Pacific Gas Electric Company

155	Ram	Singhal	Flexible Packaging Association

156	Sullivan D.	Curran	Fiberglass Tank & Pipe Institute

157	David E.	Ziarnik	Adams-Columbia Electric Cooperative

158	Gerry	Baker	Interstate Oil & Gas Compact Commission

159	Deborah A. 	Boyle	Oncor Electric Delivery

160	Curtis	Trivitt	CoServ Electric

161	Chad	Kirkpatrick	Fort Loudon Electric Cooperative

I. Hot-mix Asphalt

Issue: EPA proposed to exempt hot-mix asphalt (HMA) from the SPCC
requirements but would continue to regulate asphalt cement (AC), asphalt
emulsions, and cutbacks, which are not HMA.

COMMENTS

Support Proposal

Generally Support. Several commenters expressed general support for the
proposed exemption. (72, 75, 111, 113, 131, 142)

Oppose Proposal

No comments were submitted on this topic.

Alternative Approaches

Extend exemption to all solid or non-flowing materials. One commenter
suggested that the exemption should be extended to whenever oil has been
mixed with material that will make the mixture unlikely to flow: oil
mixed with sorbents, jelled oils, etc. The commenter believes that oils
and other similar materials which are solids in storage would not pose a
threat and should be exempt from SPCC applicability just as Hot-Mix .
The commenter also stated that the additional recordkeeping and
inspection requirements imposed by including materials that cannot flow
in an SPCC Plan is not justified by any protection provided to the
environment. That commenter went on to suggest “[t]he language in the
regulation should be changed to reflect that any material stored in a
solid or otherwise non-flowing state should not be counted towards the
facility oil storage capacity.” (113)

Another commenter suggested extending the exemption to other Group 5
oils, arguing that with specific gravities greater than or equal to 1.0,
these products are solids or highly viscous at ambient temperature. The
commenter added that a discharge of one of these products does not have
the same results as a discharge of a Group 1 through Group 4 oil as it
would generally be contained in the immediate vicinity of the container.
The commenter recommended, at minimum, that EPA exempt these oils from
sized secondary containment and integrity testing requirements. (111)

	One commenter suggested extension of this exemption to all waxes since
they are unlikely to reach navigable waters or adjoining shorelines and
pose minimal risk of environmental harm.  The commenter also requested
that EPA confirm that waxes used in the flexible packaging industry are
not classified as oils for SPCC purposes. (155)  Another commenter
suggested exempting paraffin wax due to its chemical and physical
properties that vary from other petroleum or oil products regulated
under 40 CFR 112.  The commenter contends that paraffin wax has an oil
content less than one percent when fully refined, is solid at
temperatures less than 120 degrees F and solidifies quickly when
spilled.  The commenter further contends that the wax is non-toxic and
not a contamination threat. (92)

One commenter recommended “a modification to the rule that would also
allow the Professional Engineer (P.E.), utilizing good engineering
judgment, to exempt certain asphalt cement in bulk storage which, if
released from its primary container, would not reach navigable water.
This modification to the rule would ease the burden of providing full
SPCC compliance for asphalt cement that is a solid at ambient
temperature. At a minimum, these asphalt cement containers should be
exempt from the integrity testing and sized secondary containment
requirements.” (75)

	One commenter suggested, “[t]he language in the regulation should be
changed to reflect that any material stored in a solid or otherwise
non-flowing state should not be counted towards the facility oil storage
capacity.” (113)

Commenters suggested that EPA clarify that containers storing or holding
solid-at-ambient-temperature AFVOs are exempt from the rule’s
requirements when there is not a reasonable expectation that the AFVOs
in such containers would discharge to navigable water or adjoining
shorelines.  (51,126)

One commenter requested that EPA clarify what is an oil for purposes of
SPCC applicability. (72)

Extend exemption to all asphalt cement containers at HMA mix plant
sites. One commenter stated that the HMA Industry does not agree that
asphalt cement (AC), under ordinary circumstance, represents a
significant threat to the environment as stored on HMA Mix Plant sites.
The commenter added that the spill record simply does not support such
conclusion and that it is not likely that such spill, if it did occur,
would either contribute to sheen or to a contravention of water quality
standards. The commenter thought it would seem logical to exempt AC
storage at HMA plant sites from secondary containment provisions of SPCC
regulation. Should EPA not agree with this exemption logic, the
commenter’s request would be that the language in §112.7 relating to
the requirement for secondary containment specifically allow latitude
for site specific good engineering judgment in the use of equivalent
protection measures relating to containment of any potential spills from
AC storage at HMA plant facilities. The commenter continued that such
judgment would take into account the potential for a sizeable spill
event, the viscous properties of asphalt cement, the nature of the
terrain, the distance from a navigable water and the presence of already
existing barriers to spills such as existing storm water retention
structures, manmade channels and holding areas to allow time for set-up,
dirt or aggregate berms, along with the ready availability of
containment equipment. (131)

One commenter requested that EPA exempt AC from the SPCC rule and
exclude the capacity of AC storage tanks from the determination of a
facility’s total oil storage capacity on the basis of its
“’self-containing’” properties, low risk of a spill to navigable
waters and the absence of data on harm. (142)

No exemption for oils associated with asphalt production. One commenter
requested that EPA clarify that any oils associated with asphalt
production be regulated if their total volume exceeds 1,320 gallons.
(48)

Applicability of rule based on reasonable expectation of discharge. A
commenter also urged EPA to “redact the previously noted statement
made in its Federal Register notice that ‘…if a facility owner or
operator determines that there is a reasonable expectation to discharge
oil to navigable waters or adjoining shorelines for a single oil
container, all oil containers at the facility are subject to the
rule’s requirements.’” (126)

RESPONSE

Support Proposal

Generally Support.  EPA agreed with the commenters and is finalizing the
exemption for HMA, as proposed.

Alternative Approaches

Extend exemption to all solid or non-flowing materials. EPA disagrees
with commenters who requested that the Agency consider extending the
proposed HMA exemption to oils (including asphalt cement) which
commenters believe are unlikely to flow at ambient temperatures. Unlike
HMA, these materials do have the potential to discharge into navigable
waters or adjoining shorelines. Additionally because these oils are
often stored at elevated temperatures and thus, are capable of flowing
if there is a discharge from the container.  As stated in the proposal
EPA believes that the threat that asphalt cement, as well as other
semi-solid oils including waxes, pose to navigable waters and adjoining
shorelines can be effectively addressed by implementing the procedures
and measures required under the SPCC, therefore, EPA did not propose an
exemption. Additionally no new data was provided by commenters which
convinced EPA to take action beyond HMA. More importantly since EPA did
not propose an exemption for oils other than HMA, expanding the
exemption is outside the scope of the proposal.

However, it should be noted that the SPCC rule only applies to
facilities that, due to their location, can reasonably be expected to
discharge oil to navigable waters or adjoining shorelines. In
determining whether there is a reasonable expectation of discharge, an
owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. If a facility owner or
operator determines that there is a reasonable expectation to discharge
oil to navigable waters or adjoining shorelines from any single oil
container (including a container storing oil associated with hot-mix
asphalt production), and other rule applicability criteria are met, then
all oil containers at the facility are subject to the rule’s
requirements (except as otherwise exempted).  The Agency disagrees that
any additional regulatory modifications are necessary.

EPA disagrees with commenters who recommended that EPA exempt AC or
Group 5 oils from sized secondary containment and integrity testing
requirements. EPA believes that the SPCC rule provides the facility
owner or operator with significant flexibility to select prevention and
control measures that are appropriate and cost effective for the
facility and type of product being stored. For example, the secondary
containment requirements of the SPCC rule may be satisfied if the
secondary containment system, including walls and floor, are capable of
containing the oil and are constructed so that any discharge from a
primary containment system will not escape secondary containment before
cleanup occurs (§112.7(c)) and diked areas are sufficiently impervious
to contain the oil (§112.8(c)(2) and §112.12(c)(2)). Therefore, the
flow properties of Group 5 oils for example, (as for any oil) may be
considered in designing appropriate means of containment. If, once
cooled, the oil remains in place, an effective means of secondary
containment may involve surrounding the bulk storage container with an
earthen berm that will contain the oil until it can solidify.

	A commenter requested that EPA clarify what is an oil for purposes of
SPCC applicability. Oil as defined in 40 CFR 112.2, means oil of any
kind or in any form, including, but not limited to: fats, oils, or
greases of animal, fish, or marine mammal origin; vegetable oils,
including oils from seeds, nuts, fruits, or kernels; and, other oils and
greases, including petroleum, fuel oil, sludge, synthetic oils, mineral
oils, oil refuse, or oil mixed with wastes other than dredged spoil.
The above definition includes, but is not limited to, asphalt cement and
other solid or semi-solid oils, such as paraffin wax and heavy bunker
fuels. Because of the operational conditions under which solid or
semi-solid oils are used and stored, they pose a risk of being
discharged into or upon navigable waters or adjoining shorelines.

Extend exemption to all asphalt cement containers at HMA mix plant
sites. The Agency disagrees with the commenters’ requests to exempt AC
from the SPCC rule. Because of the operational conditions under which AC
is used and stored, AC does pose a risk of being discharged into
navigable waters and adjoining shorelines. (See EPA’s report, Asphalt
Under the Spill Prevention, Control, and Countermeasure Regulation,
August 29, 2007, in the docket for this proposal.) Although AC is
semi-solid or solid at ambient temperature and pressure, it is generally
stored at elevated temperatures. Hot AC is liquid—similar to other
semi-solid oils, such as paraffin wax and heavy bunker fuels—and
therefore is capable of flowing. Therefore, all of these oils are
regulated under the SPCC rule.

EPA disagrees with the commenter(s) who believes the lack of spill data
is a reason to exempt heavy oils. The SPCC regulations address a
facility’s reasonable expectation of an oil discharge in quantities
that may be harmful to navigable waters and adjoining shorelines.  The
lack of spill data for facilities that are in compliance with SPCC
regulations is an indicator that the spill prevention regulations may be
effective.

EPA disagrees with commenters who believe that the SPCC requirements for
certain oils should be differentiated based on an oil’s toxicity.
Irrespective of oil toxicity, discharges of oil in such quantities that
may be harmful are described in 40 CFR 110.3 to include discharges of
oil that violate applicable water quality standards, or cause a film or
sheen upon or discoloration of the surface of the water or adjoining
shorelines or cause a sludge or emulsion to be deposited beneath the
surface of the water or upon adjoining shorelines. EPA is also concerned
about the physical effects of oil spills such as smothering of habitat,
clogging of fish gills, and destruction of the benthic community that
can happen when heavy oils such as AC sink to the bottom of a water body
and come into contact with fish.

No exemption for oils associated with asphalt production.

The Agency agrees that oils associated with hot mix asphalt production,
including asphalt cement, are regulated under SPCC if the facility meets
the applicability requirements in § 112.1, which includes the storage
capacity threshold.  .

Applicability of rule based on reasonable expectation of discharge. EPA
disagrees with the commenter who suggested that EPA redact the
previously noted statement made in its Federal Register notice that
‘…if a facility owner or operator determines that there is a
reasonable expectation to discharge oil to navigable waters or adjoining
shorelines for a single oil container, all oil containers at the
facility are subject to the rule’s requirements, except as otherwise
exempted. The applicability of the SPCC regulation is based on a
determination that a reasonable expectation of discharge of oil in
quantities that may be harmful to navigable waters or adjoining
shorelines can occur from the facility.

Ii. Farms

II.A  	Exemption for Pesticide Application Equipment and Related Mix
Containers

Issue: EPA proposed to exempt pesticide application equipment and
related mix containers used at farms that may currently be subject to
the SPCC rule when crop or adjuvant oil is added to formulations
requirements.  EPA also proposed to modify §112.1(d)(2) so that the
capacity of these pesticide application equipment and related mix
containers would not be counted toward the facility oil storage capacity
calculation.

COMMENTS

Support

Support for proposed exemption. Several commenters expressed general
support for the proposed exemption of pesticide application equipment
and related mix containers from SPCC requirements. (45, 56, 60, 98, 104,
109, 110, 113) Several commenters specifically supported the proposed
modification of §112.1(d)(2), so that the capacity of these pesticide
application equipment and related mix containers (i.e., containers used
to mix pesticides with oil immediately prior to application) would not
be counted toward the facility oil storage capacity calculation. (110,
113)

Oppose

No commenters expressed opposition to this proposed amendment.

Alternative Approaches Suggested

Application of exemption to other industries. Several commenters
suggested that this exemption be extended to all pesticide equipment,
regardless of ownership or where equipment is stored.  (59, 110, 113,
121)  For example, one commenter indicated that custom pesticide
applicators apply over two thirds of all pesticides to crop lands. (45)
Another commenter suggested that the exemption should be extended to
cover right-of-way pesticide applications by utility companies. (110)

Exempt pesticide containers from SPCC. Commenters suggested that EPA
“limit the potential for duplicative regulation of pesticides by the
FIFRA and SPCC programs by exempting pesticide mix containers and
equipment from the SPCC program requirements and capacity calculations
for all potentially covered industries, and not restrict this exemption
to farms.” (59, 121)

Treatment of mixtures under SPCC.  Two commenters raised concerns about
the SPCC rule lacking a clear definition of oils in product mixtures and
contended that  many liquid mixes in food production may needlessly fall
under the SPCC rule.  (104, 109).  The commenters stated that many
agricultural products, such as milk, have an oil content from less than
0.5 percent to approximately 4.5 percent and requested that EPA should
define such mixtures as exempt from SPCC regulation where the properties
of oil are no longer present due to the low concentrations.  (104, 109)

RESPONSE

Support for proposed exemption.  EPA agrees with commenters that
pesticide application equipment and related mix containers should be
exempted from SPCC requirements.

Application of exemption to other industries. EPA agrees with the
commenters that it would be appropriate to extend the exemption to
pesticide application equipment and related mix containers, regardless
of ownership or point of use. EPA evaluated the merits of extending the
exemption for all pesticide application equipment and related mix
containers at farms to all such equipment, regardless of ownership or
where used, based on the fact that this pesticide use, and certain
pesticide containers, are already subject to “similar” regulation
under FIFRA to assure the safe use, reuse, storage, and disposal of
pesticide containers.

Exempt pesticide containers from SPCC. EPA agrees with the commenters
that it would be appropriate to extend the exemption to pesticide
application equipment and related mix containers, regardless of
ownership or point of use.

Treatment of mixtures under the SPCC.  EPA does not agree that
agricultural products that may be oil mixtures should be exempted from
the SPCC rule. The statutory definition of oil includes oil of any kind
and in any form, (33 U.S.C. section 1321(a)(1)), and does not exclude
oil mixtures or establish a de minimis oil content.  EPA has found that
discharges of oil mixtures to navigable waters or adjoining shorelines
may be harmful as set forth in 40 CFR part 110.  In considering dairy
industry comments about milk mixtures and milk storage, EPA evaluated
whether the unique handling requirements and standards for milk could
provide a basis for an exemption of milk containers and their associated
piping and appurtenances from SPCC regulation.  EPA found that milk
containers should be constructed according to current applicable 3-A
Sanitary Standards, and are subject to the current applicable
Pasteurized Milk Ordinance (PMO) or a State dairy regulatory requirement
equivalent to the current applicable PMO.  Although these measures to
prevent milk spoilage and contamination are not specifically intended
for oil spill prevention, control and countermeasure purposes, they may
nonetheless serve to prevent discharges of oil in quantities that are
harmful. Thus, EPA has proposed to exempt milk containers and associated
piping and appurtenances subject 3-A Sanitary Standards and the current
applicable PMO from SPCC requirements.

II.B 	Applicability of Mobile Refueler Requirements to Farm Nurse Tanks

Issue: EPA seeks to clarify that the definition of mobile refueler
includes a nurse tank, which is a mobile vessel used at farms to store
and transport fuel for transfers to or from farm equipment, such as
tractors and combines, and to other bulk storage containers, such as
containers used to provide fuel to wellhead/relift pumps at rice farms.

COMMENTS

Support clarification

General Support. Several commenters supported the Agency’s
clarification. (45, 60, 98)

Extension to related industries. Commenters also suggested that the EPA
definition “needs to include all businesses including retailer
suppliers who have these tanks on non-road licensed equipment which are
used to re-fuel farm equipment in fields.” (45, 98)

RESPONSE

General Support. EPA agrees with those commenters supporting the
clarification.  EPA is maintaining these clarifications.

Extension to related industries. EPA agrees with commenters that
non-road licensed equipment that is used to refuel farm equipment
functions as a mobile refueler, similar to a farm fuel nurse tank. EPA
understands that agricultural retail suppliers may provide refueling
services via non-road licensed equipment to farm equipment in farm
fields. As the Agency described in the preamble to the proposed rule (72
FR 58378, October 15, 2007), a fuel nurse tank is typically used at a
farm to store and transport fuel to or from farm equipment.  Owners and
operators of these nurse tanks may also benefit from other amendments in
this action regarding the extension of relief from sized secondary
containment to all non-transportation-related tank trucks.  For example,
nurse tanks containing oils other than a fuel, such as lubrication or
hydraulic oil, would also be eligible.

II.C  	Differentiating the SPCC Requirements for Farms

Issue: EPA requested comment on three alternatives for differentiating
the SPCC requirements for farms. These include (1) providing no
additional amendments to the SPCC rule related to farms; (2) providing
alternative qualified facility criteria for farms; and (3) exempting
farms that store oil below a certain storage capacity threshold from
SPCC requirements.

II.C.i  	No Further Action

COMMENTS

General Support. One commenter supported providing no additional
amendments to the SPCC rule related to farms, asserting that EPA does
not truly understand the farm and ranch community and that the
commercial farming industry should not be given even more advantages
over the traditional farmers.  (33)

RESPONSE

General Support. EPA disagrees with commenter’s assertion that no
further action is necessary for the farm community.  EPA consulted USDA
to better understand the organizational structure of farms and the
affected farm universe and to analyze the effects of the additional
amendments, including the Tier 1 qualified facilities amendments.
According to USDA’s Economic Research Service, there are approximately
2 million farms, and 91 percent of U.S. farms are small farms with less
than $250,000 in annual sales.  Approximately 98 percent of farms are
family farms based on 2003 data and are organized as proprietorships,
partnerships or family corporations (see Economic Research Service,
“Structure and Finances of U.S. Farms: 2005 Family Farm
Report”/EIB-12, May 2006).  EPA does understand that many farms are
structured as commercial operations, but many other affected facilities
are structured as commercial entities, such as petroleum bulk plants,
fuel stations, utilities, and refineries.  The organizational structure
or ownership of a particular affected sector does not affect the
applicability determinations under the SPCC rule.  Finally, EPA
estimates that approximately 84% of the affected farm universe could be
eligible for the Tier 1 qualified facilities option.

II.C.ii   	Exempt Farms Below a Certain Storage Capacity Threshold

COMMENTS

Exemption for farms with capacities at or below 10,000 gallons. One
commenter requested that the Agency should provide for an exemption at a
threshold of, at a minimum, 10,000 gallons oil storage capacity. The
commenter cited the lack of risk based on evidence in the Regulatory
Impact Analysis showing that there was only one spill violation related
to a farm out of 292 spill violations between 2001-2006. (56)

RESPONSE

Exemption for farms with capacities at or below 10,000 gallons. EPA
disagrees with the commenter and maintains that there is insufficient
data to support an exemption exclusively for farms with aggregate
storage capacities at or below 10,000 gallons beyond the existing
aboveground storage capacity applicability threshold of 1,320 U.S.
gallons that applies to all facilities (§112.1(d)(2)(ii)).  EPA
disagrees with the commenter that the existence of a small number of
reported spills at farms provides adequate justification for an
exemption whether for farms or any other affected sector, because EPA is
generally aware of under reporting of oil spills across all affected
sectors.

II.C.iii  Alternative Qualified Facility Eligibility Criteria for Farms

COMMENTS

20,000-gallon threshold. Several commenters suggested that EPA adopt a
20,000-gallon threshold as criteria for alternative qualified facility
eligibility. (56, 60, 87, 104, 109) Commenters supported this threshold
by citing limitations on the lower limit for bulk purchase of oil (60,
104), the necessity of storing empty and/or seasonal-use tanks on a farm
(56, 60, 104), and the low risk of oil spills in the industry (56,104,
109). One commenter cited that many farms will have one 10,000-gallon
tank for gasoline and one 10,000-gallon diesel fuel tank. (104)
Commenters claim that EPA lacks the data needed to establish meaningful
triggers for all agricultural sections (56, 60, 104); and should
evaluate the threat (if any) presented by the agricultural industry and
then establish applicable regulations. (56, 104)

Tier 1 threshold. A commenter urged EPA to increase the Tier 1
individual tank threshold requirement from 5,000 gallons to 10,000
gallons. (104) The commenter stated that there is no evidence that
10,000 gallon tanks at farms present heightened concerns for spills.
(104)

Financial burden. Commenters noted that most farms do not have staff to
designate as environmental managers, nor the financial resources to hire
one; a 10,000-gallon threshold would cause unnecessary burden. (56, 104,
109) A commenter argued that EPA underestimates the calculated costs and
number of farms affected by the rule. (104)

Farming and stewardship. One commenter believes that farms with a larger
storage capacity than identified in the proposal should be exempt due to
the inherent nature of farming activities being reliant on wise
stewardship of soil and water resources. The commenter also suggested
that the revised standard might include a higher total capacity limit of
20,000 gallons. (82)

Inconsistent qualified facility approaches.  Commenters questioned why
oil production facilities, which produce oil on a constant basis, are
granted leeway from the 10,000 gallon aggregate aboveground storage
capacity threshold while farms are not. (56, 104)

RESPONSE

20,000-gallon threshold.  EPA disagrees with the commenters’
suggestions for modifying the existing qualified facilities threshold of
10,000 U.S. gallons total aboveground storage capacity.  Comments from
the agricultural community did not provide, and EPA does not otherwise
have, sufficient information that would lead the Agency to conclude that
farms are sufficiently different to warrant a higher qualified
facilities threshold, such as 20,000 U.S. gallons.  Commenters asserted
that high fuel prices tend to push growers to purchase tanks that can
accept bulk fuel orders, such as two 10,000-gallon tanks (one tank for
gasoline and one tank diesel fuel).  This rationale is no different from
that of other sectors that use fuel in their operations.  EPA believes
that other sectors have a similar need to purchase fuel in bulk and may
have similar if not identical storage needs as identified by
agricultural stakeholders. Thus, EPA is not persuaded by these comments
to raise the existing qualified facilities threshold solely for farms
beyond 10,000 U.S. gallons. In setting the qualified facilities
threshold at 10,000 U.S. gallons in the December 2006 amendments, EPA
sought to provide an alternative for facilities, among other things,
with simple oil storage configurations and smaller quantities of oil
handled (see 71 FR 77271, December 26, 2006).  EPA continues to maintain
that the focus of the qualified facilities alternative should be on
simple configurations and small quantities of oil stored or handled.

Additionally, EPA disagrees with commenters’ request that EPA evaluate
the threat of oil discharges specifically from the agricultural industry
to establish applicable regulations.  Facilities, regardless of industry
sector, that store and/or use oil above 1,320 gallons and that have a
reasonable expectation for a discharge of oil in quantities that may be
harmful, as described in 40 CFR part 110 [see §112.1(b)], are subject
to SPCC.  In evaluating whether additional tailored requirements for
farms were necessary, EPA reviewed potential unique aspects of farms
based on data gathered from consultations with USDA and stakeholders and
from site visits to farms as opposed to looking at a “specific
threat” of an oil discharge for a specific farm type, since farms
differ in crops produced, livestock raised and geographic footprint.
From these data gathering efforts, EPA has further amended the SPCC rule
with specific actions that could benefit all farms subject to SPCC.  For
example, the exemption for pesticide application equipment and related
mix containers, the revised definition of “facility”, the Tier 1
qualified facilities template, streamlined security and integrity
testing provisions, and the clarification that nurse tanks are mobile
refuelers all serve to lower the burden for farms to comply with SPCC.

Tier 1 threshold. EPA does not agree that the Tier I individual tank
threshold capacity should be raised from 5,000 U.S. gallons to 10,000
U.S. gallons.  EPA is finalizing a multi-tiered approach to allow the
owner or operator of a facility that meets the eligibility criteria for
a qualified facility to self-certify his SPCC Plan, and allow a subset
of qualified facilities (i.e., “Tier I qualified facilities”) to
complete the SPCC Plan template in Appendix G of this part in lieu of
preparing a full SPCC Plan. Tier I qualified facilities can have no
individual oil containers greater than 5,000 U.S. gallons and must meet
the eligibility criteria for qualified facilities (i.e., aggregate
aboveground oil storage capacity of 10,000 U.S. gallons or less and
meets the reportable discharge history criterion).  EPA believes that
the Tier I qualified facility alternative should focus on facilities
with the simplest configurations and smallest oil storage containers.
The commenter did not provide sufficient data to support an increase in
the Tier I threshold exclusively for farms higher than proposed.  With
respect to the comment related to spill risk of 10,000-gallon tanks on
farms, EPA does not agree that the Tier 1 threshold is predicated on an
assertion that 10,000-gallon tanks at farms or at any other affected
sectors pose a heightened spill risk.  Based on a survey of oil storage
facilities, EPA generally concluded that the “larger the storage
capacity at a facility, the greater the likelihood of larger spills,
more spills, and more cleanup costs annually” (see 71 FR 77271,
December 26, 2006, preamble discussion of qualified facilities in the
2006 SPCC rule amendments). Note that this general conclusion was not
focused on any specific category of facilities subject to the SPCC
regulations.

Financial burden.  EPA understands that many businesses do not have
dedicated environmental staff to manage SPCC issues at affected
facilities.  However, this condition exists for compliance with a wide
range of EPA regulations, not just SPCC.   EPA believes that the 2006
and 2008 amendments provide streamlined alternatives to comply with SPCC
for small users of oil (including the Tier I template option and the
Tier II hybrid option under the umbrella of qualified facilities, which
allows the owner/operator to self-certify the SPCC plan).  However, if
an owner/operator requires specialized assistance with the
self-certification approach, the owner/operator can consult EPA’s
website, a PE and/or standards setting organizations on specific issues,
such as secondary containment sizing and tank integrity testing.  The
hybrid option under Tier II provides the flexibility of having a PE
certify environmentally equivalent options or the impracticability of
secondary containment, when appropriate.  EPA disagrees with the
commenter that we have underestimated the size of the affected farm
universe and relevant costs.  EPA consulted USDA’s Economic Research
Service, along with other resources, to evaluate the affected farm
universe and develop cost aspects related to the 2008 amendments, which
are presented in the RIA (see Section 4.1 of the RIA).

Farming and stewardship. EPA disagrees with the commenter’s request to
either exempt farms with storage capacities up to 20,000 gallons from
SPCC regulations or increase the qualified facility capacity threshold
to 20,000 gallons because farming activities rely upon wise stewardship
of natural resources. The goal of EPA’s regulations, including the
SPCC rule, is protection of human health and the environment, which
includes soil and water resources. Proper stewardship by any
owner/operator of a facility subject to the SPCC rule is important to
prevent oil spills, whether the facility is a farm, an oil production
facility, a refinery or a soybean oil processing facility.  Thus,
farming is not unique in this expectation.

Inconsistent qualified facility approaches.  EPA disagrees with the
commenter that the qualified facility approaches are inconsistent
despite the variations in the eligibility criteria for both qualified
facility options. The alternative qualified facility option for small
oil production facilities is tailored to the attributes of oil
production operations. The SPCC rule provides differentiated
requirements for oil production facilities in 40 CFR part 112, Subpart B
and the Agency believes that it is appropriate to develop differentiated
eligibility criteria for qualified oil production facilities.  However,
while the eligibility criteria vary, the underlying rationale is the
same. As EPA explained in the preamble of the October 2007 proposal (see
72 FR 58411-58412, October 15, 2007) the qualified facility approach for
oil production facilities was intended as an alternative for small oil
production facilities that do not meet the qualified facility
requirements in § 112.3(g), primarily because these facilities would
likely exceed the capacity threshold of 10,000 U.S. gallons. EPA stated
that the alternative qualified facility approach for production
facilities captures the smaller operators the Agency targeted for the
self-certification option.  EPA believes that these facilities are less
complex than other oil production facilities based on the limited number
of wells per tank battery operating at a low flow rate.  The basis for
the exemption for qualified facilities from the requirement for PE
certification is that facilities with smaller oil quantities tend to be
less complex (see 71 FR 77270, December 26, 2006).  Therefore, EPA
believes that each qualified facility approach identifies the smaller,
less complex facilities eligible for self-certified SPCC Plans based on
appropriate criteria.

II.C.iv   Other

COMMENTS

Remove “special treatment.”  A commenter suggested that EPA should
“Remove the special treatment provided by the qualified facility so
all farmers, small businesses and other small oil storage facilities are
required to prepare a complete SPCC Plan certified by a PE based on
1,320-gallon storage capacity. This will assure equal and fair treatment
for all owners and operators of oil tankage.” (31) The commenter
alleged that, for many years, EPA has contravened its responsibility to
assure that farms come into compliance by not taking enforcement actions
against farms while acknowledging non-compliance in the farming
industry. (31)

Clarify that oil tanks not in use can be classified as out-of-service.
Commenter sought clarification in the SPCC rule that oil tanks that are
not in use can be classified as out of service with a minimum of tank
cleaning, preparation and signage and without the need to remove the
tanks from the facility. (98)

Extend compliance date for farmers. A commenter requested a minimum of
two additional years to allow farms to comply with the SPCC rule. The
commenter adds that this additional time would also provide farmers and
others the opportunity to work with governmental agencies, including
USDA on the development of a model plan or set of guidelines. (56)

Need for compliance assistance. One commenter requested that EPA set up
a hotline for entities seeking information and clarity on the rule and
how it applies to their operation.  The commenter also asked that the
hotline be able to send out ‘plain-English’ documentation to back up
its oral advice. The commenter also wanted EPA develop a website
dedicated specifically to SPCC requirements that offers
‘plain-English’ information on rules, clearly states deadlines,
provides templates and makes clear the formal review, appeal and
mitigation process. (56)

RESPONSE

Remove “special treatment.” EPA disagrees that the amendments to the
SPCC rule in December 2006 provide special treatment to any eligible
facility.  Many farmers and owner/operators of small oil storage
facilities may be eligible to self-certify their SPCC Plans, if they
meet the eligibility criteria for qualified facilities in §112.3(g).
In providing this option for facilities handling smaller amounts of oil,
the Agency sought to focus on smaller, less complex operations that may
be concerned about the impact of utilizing a PE on their limited budget.
 The Agency believes that providing a tailored option for owners and
operators of these smaller, less complex facilities will provide the
same level of environmental protection (71 FR 77270, December 26, 2006).
 Also, EPA disagrees with the notion that we have overlooked compliance
with SPCC in the farm sector.  EPA has actively engaged the agricultural
sector, during site visits at farms, at national forums, and at industry
trade meetings to improve awareness of SPCC requirements in the farm
sector.  EPA also disagrees that it has avoided taking SPCC enforcement
cases against farms.

Clarify that oil tanks not in use can be classified as out-of-service.
EPA defines permanently closed at §112.2  We would note that any
container that meets this definition is not subject to the SPCC
regulation and therefore, would not be included in the facility’s
aggregate oil storage capacity. The definition does not require that the
permanently closed container be removed from the facility but it does
require cleaning, signage and other preparations. Similarly, a new,
empty tank that arrives at a farm or other SPCC-regulated facility is
not to be counted towards a facility’s aggregate oil storage capacity
until the tank is actually used to contain oil.  EPA discusses this
clarification further in section M of the final rule preamble.

Extend compliance date for farmers. In a separate Federal Register
notice, EPA is proposing new compliance dates for the owner or operator
of SPCC facilities, including a farm, as defined in §112.2, to prepare
or amend and implement the facility’s SPCC Plan.  EPA will take
comment on these new compliance dates for further consideration,
including the prior comment by the farm community to extend the
compliance date by an additional two years.

Need for compliance assistance.  EPA agrees with the commenter that
plain-language, common-sense outreach is needed to guide affected
facilities in understanding the amendments and other SPCC requirements.
We have an established hotline to answer SPCC-related questions via the
 HYPERLINK "http://www.epa.gov/superfund/contacts/infocenter/"
Superfund, TRI, EPCRA, RMP & Oil Information Center  at<PHONE_NUMBER>
or TDD<PHONE_NUMBER>.  Stakeholders can also view the latest
SPCC-related information and guidance on the web at   HYPERLINK
"http://www.epa.gov/emergencies/content/spcc/index.htm"
http://www.epa.gov/emergencies/content/spcc/index.htm .  EPA anticipates
an increase in outreach work to the farm sector following the
promulgation of these amendments

III. Residential Heating Oil Containers

III.A  Exemption for Residential Heating Oil Containers

Issue: EPA proposed to exempt residential heating oil containers from
the SPCC requirements. This exemption would apply to aboveground
containers, as well as completely buried heating oil tanks at
single-family residences, including those located at farms.

COMMENTS

Support Proposal

Generally Support. Several commenters expressed support for the proposed
exemption of residential heating oil containers from SPCC requirements.
(60, 96, 97, 104, 113, 141)

Oppose Proposal

Oppose cost estimate. One commenter challenged EPA’s cost estimate for
savings due to the residential heating oil container exemption. In the
Regulatory Impact Analysis for the proposed amendments, EPA estimated a
residential heating oil tank exemption savings of $1,550 to $2,210 per
farm.  EPA also stated that the tanks’ capacities are between 413
gallons and 1,045 gallons. The commenter stated that this is a false
savings because:

The original 1973 rule exempted 660 gallon tanks for the express purpose
of exempting residential heating oil tanks;

The current threshold of 1,320 gallons is above the upper gallon size of
heating oil tanks as estimated by EPA at 1,045 gallons; and,

Savings on annual SPCC expenditures for residential tanks realized by
homeowners is nonexistent because, in real life, practically no one has
applied SPCC rules to their home heating oil tanks. (56)

Other Suggested Approaches

Extend proposed exemption beyond single-family residences.  One
commenter suggested that “EPA include buildings and offices located
remotely from mining operations that meet 40 CFR Part 112
applicability” because “heating containers at these buildings do not
pose any greater threat of discharge than EPA’s proposed exempted
residential oil containers.” (97) Another commenter suggested the
exemption of heating oil tanks at a facility occupied daily, with
storage capacity not exceeding 5,000 gallons, in containers not
exceeding 1,000 gallons, because these facilities are regularly
occupied, and thus would not pose any more likelihood of release than a
single-family residence. (82)

Exempt heating oil storage containers serving four or fewer households.
One commenter suggested this approach to be consistent with federal
underground storage tank regulations. (141)

RESPONSE

Generally Support. EPA agrees with those commenters who supported the
exemption, and is finalizing the exemption as proposed.  EPA views a
single-family residence as a household that has direct ownership of the
oil stored in the heating oil container. The Agency did not intend, by
itself, that a single-family residence that stores heating oil for
personal use should trigger SPCC applicability, particularly because
such residences generally do not have significant quantities of other
types of oil. The basis for this interpretation stems from the preamble
to the original 1973 SPCC rule (38 FR 34164, December 11, 1973), which
identified containers of 660 U.S. gallons as the maximum domestic code
size for non-buried heating oil containers, and that residences could
have two such containers. The storage capacity thresholds for SPCC rule
applicability were initially established at 660 U.S. gallons for an
individual container and 1,320 U.S. gallons total aboveground capacity
for the facility, to essentially exclude the capacity of residential
heating oil containers. Thus, the presence of heating oil containers at
a single family residence was generally not intended, by itself, to
trigger SPCC applicability.

Oppose cost estimate. EPA disagrees with the commenter’s criticism of
the method for estimating cost savings for the exemption of residential
heating oil containers. In 2002, EPA revised the aggregate aboveground
oil storage container capacity threshold from 660 gallons to 1,320
gallons. The threshold of 1,320 gallons applies to the total aboveground
oil storage capacity at a facility, not of individual containers. The
minimum container size that counts towards the total storage capacity is
55 gallons. Therefore, containers between 413 gallons and 1,045 gallons
would be counted towards a facility’s total storage capacity, and if
this capacity exceeds 1,320 gallons (and other applicability criteria
are met), then the facility is subject to SPCC. As per EPA’s
“Guidelines for Preparing Economic Analyses,” EPA assumes full
compliance with the existing SPCC rule in the baseline cost assumptions.
EPA recognizes the commenter’s concerns that some facilities may not
be in compliance with SPCC. To account for this, EPA conducted a
sensitivity analysis that considers partial compliance in the baseline.

Extend proposed exemption beyond single-family residences.  EPA
disagrees with those commenters who suggested extending the exemption
beyond heating oil containers at single-family residences. Owners and
operators of commercial facilities, such as mining operations,
refineries, and manufacturing plants that include related
administrative/office buildings plus commercial multi-family structures
(such as condominiums and apartment complexes) will generally store
larger volumes of oil as compared to single-family residences.  When
these volumes exceed the SPCC threshold of 1,320 U.S. gallons (or 42,000
U.S. gallons for completely buried tanks) and there is a reasonable
expectation of an oil discharge to navigable waters or adjoining
shorelines, the facility is subject to SPCC.  However, if a commercial
facility (for example, a university) includes a single- family residence
on the premises, then any heating oil container associated solely with
this residence is exempt from SPCC.

Exempt heating oil storage containers serving four or fewer households.
EPA disagrees with exempting heating oil containers based on the number
of households served.  As stated previously, the original 1973 SPCC rule
intended to include residential home heating oil containers and was not
crafted to exclude multi-family residential housing complexes, since
these complexes would typically have heating oil tank capacities greater
than 660 gallons to meet the heating demand.

III. B  	Alternative Option Considered

Issue: EPA invited comments on an exemption only for residential heating
oil containers located at farms, because farms commonly include, within
the geographical confines of the facility, the residence of the farmer.
Under this option, only heating oil containers associated with
residences on farms would benefit from an exemption from the SPCC rule.

COMMENTS

Support Proposal

Exclude heating oil storage containers at farms with a single-family
residence. One commenter supported exempting heating oil storage
containers located at a farm facility’s single-family residence. (82)

Oppose Proposal

No comments were submitted on this topic.

RESPONSE

Exclude heating oil storage containers at farms with a single-family
residence. EPA agrees with the commenter that heating oil containers
located at a single-family residence at a farm should be exempt from the
SPCC rule and is finalizing such an exemption.  However, the commenter
does not provide any basis to limit the exemption solely to farms.
Because we believe the same rationale applies to exempting heating oil
containers at single family residences at facilities other than farms,
the exemption applies to all single-family residences.

IV. Definition of Facility

IV.A 	Revisions to the Definition of Facility

Issue: EPA proposed to modify the definition of “facility” to
clarify that contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines may be
considered separate facilities, and to specify that the
‘‘facility’’ definition governs the applicability of 40 CFR part
112. The final revisions, following the proposal, clarify that an owner
or operator may separate or aggregate containers to determine the
facility boundaries, based on such factors as ownership or operation of
the buildings, structures, containers, and equipment on the site, the
activities being conducted, property boundaries, and other relevant
considerations.

COMMENTS

Support Proposal

Generally Support. Many commenters expressed general support for the
proposed amendment. (40, 43, 48, 52, 55, 56, 60, 64, 66, 70, 72, 74, 75,
76, 97, 100, 103, 104, 105, 108, 109, 110, 111, 112, 113, 121, 123, 124,
133, 143, 151)

Support with provision of examples. Several commenters indicated that
certain types of facilities, such as those in the wind power (40),
agriculture (56, 60, 104, 109), electrical utility (66, 110), forestry
(70), aviation (74), and others, including coal mining (48, 64), might
be managed by multiple groups, and that dividing a parcel of land into
facilities on the basis of these individual operations makes sense.

Oppose Proposal

Operators should not be able to define the facility boundaries. One
commenter indicated that, if operators are allowed to define facility
boundaries themselves, a facility “could be 'broken up' into more than
one facility, thereby getting the ‘new’ facilities under the
regulated thresholds; e.g., a facility with one 2,000 gallon tank and
one 1,000 gallon tank might be able to split into two separate
facilities, making the area within the new boundary where the 1,000
gallon tank lies unregulated. If this is a possible outcome, [the
commenter] strongly objects to this provision.” (146)

RESPONSE

Generally Support/ Support with provision of examples. EPA agrees with
those commenters who supported this approach. We also agree with the
commenters that the owner or operator has the discretion to determine
what constitutes a facility. That is, the rule may become applicable to
the facility for the first time in cases of aggregation of buildings,
structures or equipment and associated storage or type of activity, or
the division of the facility may end applicability due to separation of
buildings, structures or equipment and associated oil storage or type of
activity.

Operators should not be able to define the facility boundaries. EPA
disagrees with the commenter who believes that operators should not be
allowed to define facility boundaries. EPA recognizes that this
amendment may have the affect of removing a facility from being subject
to the SPCC requirements by virtue of the legitimate use of discretion
by the owner or operator in defining facility boundaries.  However, we
would also note that an owner or operator may not make such
determinations indiscriminately and in such a manner as to simply avoid
applicability of the rule (for example, the division of one facility
into separate facilities with one oil storage container located at each
facility where all storage containers are located side-by-side or close
to each other, and are used for the same purpose). For further
information on the definition of facility, see Chapter 2 of the SPCC
Guidance for Regional Inspectors (version 1.0, November 28, 2005).

IV.B 	Determining the Components of a Facility: Examples of Aggregation
or Separation

Issue: 	The factors for determining the boundaries of a facility as
listed in the definition of facility are not exclusive, but are merely
examples. The SPCC Guidance for Regional Inspectors (version 1.0,
November 28, 2005) elaborates on additional factors that may be
considered. Those factors may include, but are not limited to:
ownership, management, or operation of the containers, buildings,
structures, equipment, installations, pipes, or pipelines on the site;
similarity in functions, operational characteristics, and types of
activities occurring at the site; adjacency; or shared drainage
pathways. In the October 2007 proposed rule, EPA provided several
examples and hypothetical scenarios of how a facility owner or operator
may determine what is considered a “facility” for the purposes of an
SPCC Plan (see 72 FR 58387, October 15, 2007).

COMMENTS

Oil and Gas Operations. A commenter requested that EPA modify § 112.2
so that multiple facilities can be included within a single plan. The
commenter stated that to reduce the costs of preparing SPCC Plans, most
P.E.s combine as many oil and gas leases (operated by the same company
within the same county) as possible because oil and gas operations,
whether small or large are virtually alike with wells, flowlines,
separators, treaters and storage tanks. The commenter believes that
based on reading 112.2, production facility, EPA concludes this cost
saving procedure comports with the 112.2 definition. If not, the
commenter requested that EPA revise the definition or there will be
thousands of almost duplicate, costly SPCC Plans and would decrease the
availability of professional engineers. (31)

Wind power plants. One commenter supported flexibility to prepare single
or multiple SPCC Plans for wind power plants, which potentially involve
many landowners spread over large areas. (40)

Refineries; legitimate means for defining facility boundaries; FRP
applicability. Two commenters recommended that EPA clarify the preamble
statement that a facility owner or operator has some discretion in
describing the paramaters of his facility while he cannot describe the
facility boundaries unreasonably in an attempt to avoid regulation.
(75, 111).  The commenters recommended that if a logical separation
exists as detailed in the preamble to this proposed rule, then EPA
should acknowledge that the facility is not separating the installation
in order to avoid regulation. (75, 111) One commenter described a
situation where remediation activities may be ongoing at an operating
refinery. In such a case, the commenter noted that “[t]he refinery
owner may determine that the refinery is a facility and the remediation
activities are a separate facility. The commenter posited that the
refinery meets the Facility Response Plan (FRP) applicability
requirements but the remediation activities, whether or not meeting SPCC
requirements, do not meet the FRP applicability requirements. The
commenter stated that this situation should not be interpreted as
avoiding FRP regulation for the remediation activities. (75)  The other
commenter was concerned that the preamble statement may be interpreted
to mean that when an owner or operator defines contiguous properties as
separate facilities (e.g. refinery with an associated terminal
contiguous to the refinery) he is merely seeking partial relief from FRP
requirements with the method in which he defines his facility. (111)

Airports; fuel transfers. A commenter asked EPA to clarify whether
activities at a non-SPCC regulated facility could become subject to SPCC
because regulated activities occur at another facility under the same
ownership or operation. For example, the commenter wondered whether fuel
transfer between a tank that is exempt from SPCC requirements and a
SPCC-regulated mobile refueler, both on the same airport property, is
subject to SPCC requirements.  (74)

Relationship between SPCC and FRP requirements. Several commenters
suggested that multi-facility SPCC Plans may be created that combine
common elements (such as structures, equipment, inspections, integrity
testing, secondary containment designs, and response procedures) while
retaining site-specific information. Commenters urged EPA to clarify
that using a single plan for multiple locations does not force
facilities to be considered a single facility for FRP purposes. (43, 75,
103, 108, 111) One commenter did not believe that the intent of the FRP
regulations is to require an FRP where a million gallons or more of oil
storage is scattered across large geographic areas in multiple
non-contiguous facilities. (43) A commenter suggested that this will
reduce redundancy while providing the necessary containment and response
organization to address releases. (108) Another commenter recommended
the insertion of the sentence, “Use of a general plan at multiple
sites does not make such sites a facility.”

RESPONSE

Oil and Gas Operations. EPA agrees with the commenter that facilities
with the same owners or operators that are virtually alike may be
combined into one Plan, at the owner’s discretion. As described in the
hypothetical scenario (72 FR 58387, October 15, 2007), the Agency
reiterates that an owner or operator of an oil production facility may
aggregate some or all of his leases into one Plan, at his discretion,
whether or not they are associated with the same oil or gas field.

This practice is consistent with the amended definition of facility and
therefore, no modification of rule text is necessary.

Wind power plants. EPA agrees that wind power plants, whether spread
over large or small areas and which may involve multiple landowners, may
be appropriately defined as single or multiple facilities, depending on
the circumstances, at the owner or operator’s discretion. Such
facilities may be encompassed in single or multiple facility SPCC Plans.

Refineries; legitimate means for defining facility boundaries; FRP
applicability. EPA agrees with the commenters that while an owner or
operator has discretion in defining facility boundaries, that owner or
operator may not make such determinations indiscriminately and in such a
manner as to simply avoid applicability of the rule. EPA agrees that if
a logical separation exists as described in the preamble, such
separation may be legitimate and not designed merely to avoid
regulation. EPA also generally agrees with the commenter that a
petroleum refinery owner or operator may, at his discretion, decide that
remediation activities at an operating petroleum refinery constitute a
separate facility.  When an owner or operator defines contiguous
properties as separate facilities (e.g., a refinery with an association
terminal contiguous to the refinery), his facility determination will
impact both SPCC and FRP applicability.

Airports; fuel transfers. EPA agrees with the commenter that the Agency
does not regulate the transfer of fuel at an exempt facility. However,
once the fuel is transferred to a regulated container at a facility
subject to the SPCC requirements, the transfer activity becomes subject
to the SPCC requirements.

Relationship between SPCC and FRP requirements. EPA agrees with the
commenter that the use of a general Plan at multiple sites does not make
such sites one facility, but disagrees that a rule text change is
necessary because EPA believes the amended rule text encompasses such a
situation. The definition of facility determines the applicability for
all purposes under part 112. Thus, once an owner or operator defines the
extent of his facility, that definition determines applicability for
both SPCC and FRP purposes. The owner or operator may, at his
discretion, create a Plan that includes more than one site, and define
it as one facility for both FRP and SPCC applicability. Or, an owner or
operator can include several separate facilities in one SPCC plan.  Such
multi-facility Plans may combine common elements of various sites, while
retaining site-specific information. While the Plan may encompass
multiple facilities, the applicability of SPCC and FRP requirements is
determined by the extent of each individual facility. This action should
not be viewed as a deterrent to the use of multi-facility SPCC Plans, a
concern expressed by operators in the oil production sector.

IV.C	Alternative Options Considered

Issue: EPA requested comment on alternative options listed in the
proposal as well as other suggested approaches.

COMMENTS

No Action

No comments were submitted on this topic.

Address through guidance

No comments were submitted on this topic.

Other Suggested Approaches

Suggested edit to definition. One commenter recommended removing the
terms “…property, parcel, lease…” from proposed definition
because the commenter believes the terms constitute an unnecessary
expansion that will only complicate and confuse the issue as these types
of areas can extend well beyond the actual production facility. (85)

Limit definition of facility to SPCC program. One commenter urged EPA to
state that determination of “facility” for the purpose of preparing
an SPCC Plan does not preclude an operator from making different
determination of the scope of the facility for the purposes of reporting
or planning under any other federal or state statute. (105)

Clarification on leases. Two commenters recommended that EPA “clarify
that a lease does not necessarily define a facility…” (108, 111) One
commenter suggested that the definition of facility be revised to
exclude DOT and USCG components and to clarify that contiguous
buildings, properties, parcels, leases, structures, installations,
pipes, or pipelines do not necessarily define a facility but may be
considered separate facilities. The commenter also requested that EPA
codify the litigation settlement language, either as rule amendments or
an appendix to the rule, that the definition of facility in 40 CFR §
112.2 governs the meaning of facility as used in 40 CFR § 112.20(f)(1),
regardless of the specific type of facility at issue  (111)

Resolving disputed facility determination; timeline. Two commenters
recommended that 120 days be given to an agricultural producer to
resolve any compliance concerns, including a disputed facility
determination. (56, 104)  One commenter suggested that EPA further
clarify its intent in the guidance provided to inspectors to ensure the
fewest number of differing interpretations during implementation. (56)

Consistency between definitions. One commenter suggested that the
current proposal does not clarify or streamline the definition of
facility, because of the consistent definitions of facility boundaries
for SPCC and FRP requirements. (108)

RESPONSE

Suggested edit to definition. EPA disagrees with the suggested edit to
remove the terms “. . . property, parcel, lease. . .” from the
definition of facility. The Agency believes that these terms serve as
clarifying examples of what may constitute a facility.   As stated in
the proposal, EPA believes that adding these terms further distinguishes
the attributes that can be considered in determining facility
boundaries. The owner or operator has the discretion to define his
facility boundaries based on any of the factors described in the rule
text.  EPA reiterates that an owner or operator may not define facility
boundaries indiscriminately to simply avoid applicability of the rule.

Limit definition of facility to SPCC program. EPA agrees that the
definition of facility, as defined in §112.2, applies only for purposes
of part 112, and not for purposes of any other federal or state statute.
 The SPCC definitions in 40 CFR 112 are preceded by the statement
“[f]or the purpose of this part:”

Clarification on leases. EPA does not agree with the commenter that a
lease does not necessarily define a facility.  EPA clarifies that a
lease may, at the owner or operator’s discretion, constitute a
facility. According to the definition, contiguous or non-contiguous
buildings, properties, leases, structures, installations, pipes, or
pipelines under the ownership or operation of the same person may be
considered separate facilities. The definition further lists several
site specific factors, including but not limited to, ownership or
operation of buildings, structures, and equipment on the same site and
types of activity at the site. EPA disagrees with the commenter who
requested revisions to the definition of facility to exclude DOT and
USCG components.  The existing regulations in § 112.1(d) delineate the
facilities, equipment or operations that are not subject to SPCC
regulations and addresses DOT jurisdiction.  EPA does not agree that the
litigation settlement language should be codified because EPA believes
that this action addresses the facility definition issue in the
settlement of the 2002 SPCC rule litigation.  In the amended definition,
EPA clarifies that only the definition of “facility” in § 112.2 is
used to determine whether a facility is subject to 40 CFR part 112,
regardless of the specific type of facility at issue.

Resolving disputed facility determination; timeline.  EPA disagrees that
owners or operators of SPCC regulated facilities should be given 120
days to address any possible compliance concerns, including but not
limited to, differences of opinion on a facility determination. Whether
or not a total or partial SPCC Plan is needed, or whether an existing
Plan should be amended is a compliance issue, subject to the provisions
of §112.1(f) or §112.4(e) and (f). These sections provide adequate
time for appeal a final determination of the Regional Administrator
under § 112.1(f) or a decision of the Regional Administrator under §
112.4(e) and (f) to the Administrator. Therefore, a period of 120 days
is unnecessary and is not included in this final rule to allow the owner
or operator to resolve compliance issues.

Consistency between definitions. The Agency disagrees that the proposal
does not clarify or streamline the definition of facility. EPA has
specifically clarified that the definition of “facility” determines
both SPCC and FRP applicability under 40 CFR part 112.

V. 	Facility Diagram

V.A	Revision to the Facility Diagram Requirement Regarding Mobile or
Portable Containers

Issue:  EPA proposed to revise the facility diagram requirement at
§112.7(a)(3) to clarify how containers, fixed and mobile, are
identified on the facility diagram. Where facility diagrams become
complicated due to the presence of multiple fixed oil storage containers
or complex piping/transfer areas at a facility, the owner or operator
would be able to include that information separately in the SPCC Plan in
an accompanying table or key. Furthermore, EPA proposed a revision so
that for any mobile or portable containers located in a certain area of
the facility, an owner or operator would be able to mark that area on
the diagram where such containers are stored. If the total number of
mobile or portable containers changes on a frequent basis, the owner or
operator would be able to indicate the potential range in number of
containers and the anticipated contents and capacities of the mobile or
portable containers maintained at the facility in the Plan.

COMMENTS

Support Revision

Generally support. Many commenters expressed general support for the
proposed amendments. (30, 38, 43, 51, 52, 55, 59, 61, 64, 72, 75, 81,
88, 90, 97, 100, 102, 105, 108, 110, 111, 112, 113, 119, 121, 123,128,
129, 143)

Oppose Revision

Increase in cost of preparing diagram. One commenter opposed the
proposed amendments because of increased cost estimates for facility
diagrams. The commenter claimed that EPA inspectors cite the Guidance as
if it were a rule and use it as the basis for requiring more expensive
facility diagrams. The commenter asserted that EPA has no legal
authority to demand a more expensive facility diagram than anticipated
and justified in the Executive Order 12866 published 17 July 2002. (31)

Other Suggested Approaches

Clarify types of containers considered mobile/portable tanks or
mobile/portable containers. Commenters suggested that EPA should clarify
that a small container, put into place and later moved, qualifies as a
mobile container. (51, 90, 102) One commenter stated that EPA includes
55-gallon drums, IBC’s, and mobile/portable maintenance tanks which
are some of the more problematic containers to address on a facility
diagram, in the population of mobile/portable tanks.” The commenter
requested that EPA make formal inclusion of this clarification in the
rule. (110)

Fixed or permanent storage locations. One commenter suggested that EPA
clarify that only portable or mobile storage container locations that
are fixed or permanent be required in the facility diagram, and that
internal facility tracking of these containers is sufficient for
planning and emergency response purposes. (75) Similarly, two commenters
supported minimizing diagram requirements to only areas with
“significant and dedicated quantities of mobile or portable
containers” and stated that single drums are not reasonable to track
on a diagram and do not provide increased environmental protection by
their inclusion. (111, 113)

Range reporting. One commenter suggested that EPA allow facility
operators to use “range reporting” for numbers of containers and
their quantities that may be in use at the facility, as discussed in the
General Information summary for the proposed rule and that EPA
incorporate this concept in the final rule. (88)

Computerized tracking system. One commenter recommended an “internal
site-wide computerized tracking system utilizing container bar codes
that provide real-time information on the quantity, type, location, and
person responsible for oil containers 55 gallons or greater.” The
commenter recommended this option, or “a similar administrative
alternative, be added to the requirement to mark facility diagrams with
storage areas for mobile or containers, since such storage areas could
be anywhere around the site and vary over time.” (39)

Expand list of compliance activities that do not require PE
certification.  One commenter suggested that the rule would be even
clearer “if Section 112.5 were amended to specify… other examples of
plan changes that do not require certification. These examples could be
listed immediately following the existing list in 112.5 of changes that
may require PE certification.” (43)

Diagrams prepared for other use. One commenter suggested the final rule
should state that an FRP diagram is acceptable for SPCC purposes. (75)
Two commenters specifically supported the use of facility diagrams for
SPCC Plans that have already been prepared for other programs. (111,
113)

Changes to the diagram. One commenter challenged EPA’s statement that
changes to the facility diagram are considered administrative in nature
and do not require PE certification. The commenter believes that as it
relates to non-engineer ‘certified’ plans, this statement conflicts
with 112.5, Amendment of SPCC Plan by owners or operators which gives
examples of changes that may require amendment of the Plan including
commissioning or decommissioning containers; replacement,
reconstruction, or movement of containers.(82) The commenter also
claimed that documents prepared by engineers may not be legally altered.
(82)

Reference to “oil storage containers” should be changed. One
commenter suggested referring to “oil storage containers” as “bulk
storage” or “bulk oil storage containers” in §112.7(a)(3). (128)

Dedicated permanent storage area. Two commenters suggested that the rule
require the diagram to indicate the location of the dedicated permanent
storage area where significant quantities of mobile portable containers
are located. The commenter also suggested that, instead of requiring the
facility diagram to include all transfer stations and connecting pipes,
allow a PE to require additional details, such as transfer stations and
connecting pipes, as appropriate. (111, 113)

RESPONSE

Generally support. The Agency agrees with those commenters who supported
the proposal, and believes that clarification and simplification of
these requirements will reduce costs and facilitate compliance.

Increase in cost of preparing diagram. The Agency disagrees that these
amendments would increase the cost of preparing a facility diagram. The
Agency is not adding any additional requirements that would result in a
more expensive facility diagram, but is rather reiterating that it does
not require that a facility diagram be developed exclusively for the
SPCC Plan. Facility diagrams prepared for a state or federal plan,
including the FRP requirements under §112.20, or other facility
diagrams prepared for purposes such as construction permits, facility
modifications, or other pollution prevention requirements may be used in
an SPCC Plan if they meet the requirements of the SPCC rule.
Furthermore, the clarification and simplification of these requirements
will result in reduced costs and increased ease of compliance.

Clarify types of containers considered mobile/portable tanks or
mobile/portable containers. The Agency does not agree that we need to
clarify, via rule language, which containers are considered mobile or
portable.  The Agency has already provided examples of mobile/portable
containers in Section 4.4.4 Secondary Containment Requirements for
Mobile/Portable Containers of the SPCC Guidance for Regional Inspectors
(e.g., 55 gallon drums, skid tanks, totes, and intermodal bulk
containers). Some oil refinery tank trucks and fueling trucks dedicated
to a particular facility (such as a construction site, military base, or
similar large facility) may fall under this category.

Fixed or permanent storage locations. The Agency disagrees with
commenters regarding the need to include on the facility diagram only
those mobile or portable container locations that are “fixed”,
“permanent”, or dedicated, as part of the clarifying language.  The
Agency believes, and clearly stated in preamble to the proposed rule (72
FR 58378, October 15, 2007), that mobile or portable containers should
be marked on the facility diagram in their out-of-service or designated
storage area, primary storage areas, or areas where they are most
frequently located, and believes that the final rule language
accomplishes this purpose.

Range reporting. The Agency agrees with the comments supporting the
flexibility of reporting an area on the facility diagram (such as a drum
storage area) for these containers, as well as providing reasonable
estimates (including ranges) for the potential number of mobile or
portable containers, types of oil, and anticipated capacities in the
SPCC Plan. The Agency believes that the amendment to allow for reporting
estimates already incorporates the concept of ranges. The Agency
believes that these estimates can be effectively used to determine the
applicability of the rule thresholds and provide a general description
of the mobile/portable containers in the SPCC Plan; this clarification
may be particularly useful when the number of containers change
frequently at the facility.

Computerized tracking system. The Agency does not agree with the
suggestion to add computerized tracking system, or similar requirements,
to the SPCC rule.  While the idea of an internal computerized tracking
system, utilizing container bar codes to provide real-time information
on the quantity, type, location, and person responsible for oil
containers of 55 U.S. gallons or greater may suit some facilities, the
Agency does not believe it can reasonably require such a system for all
SPCC-regulated facilities. However, EPA believes that the amendments
allow a facility owner or operator to implement such a system to assist
in their tracking of mobile or portable containers, and to use it to
meet the SPCC Plan requirement for these types of containers, if
desired.

Expand list of compliance activities that do not require PE
certification. The Agency does not agree that it needs to expand the
list in §112.5 of examples of compliance activities that do not require
PE certification, because including every potential scenario is not
possible. Generally, a change to the facility that may affect the
facility’s potential to discharge oil in quantities that may be
harmful, as described in part 110, would require PE certification.
Additionally, owners or operators can refer to the existing list of
changes that may require PE certification in §112.5.

Diagrams prepared for other use. The Agency does not agree that it needs
to amend the rule language to require the use of any specific type of
facility diagram.  EPA does not require that a facility diagram be
developed exclusively for the SPCC Plan. A facility diagram prepared for
a state or federal plan (including the FRP requirements under §112.20)
or for other purposes (for example, construction permits, facility
modifications, or other pollution prevention requirements) may be used
in an SPCC Plan if it meets the requirements of the SPCC rule (i.e., it
includes the contents and capacities of containers; transfer areas; and
piping). Thus, we believe that the existing regulations allow for a
facility diagram developed for other programs to be used, which not only
facilitates compliance with this requirement, but also reduces the cost
of diagram preparation.

Changes to the diagram. EPA disagrees that its statement that changes to
the facility diagram are considered administrative and do not require PE
certification conflicts with §112.5.  The SPCC rule requires PE
certification for any technical amendment (§112.5(c)). Nonetheless,
facility diagram changes may not always be technical amendments. The
Agency acknowledges that some amendments to the facility diagram may be
administrative in nature, and by themselves do not require PE
certification. For example, the owner or operator may also need to
revise the facility diagram to reflect changes in the facility that do
not relate to oil storage or handling operations, or to comply with
other state, federal or local requirements outside of SPCC. Conversely,
amendments to a facility diagram that result from changes that could
affect the facility’s potential to discharge oil (e.g., commissioning
or decommissioning containers; replacement, reconstruction, or movement
of containers) may require PE certification. Although the SPCC
requirements allow the owner or operator of a facility to make changes
to the facility diagram, the owner or operator may need to determine
what state or local restrictions there are, if any, for making those
changes.

	EPA notes that the Plan certification requirements for owners and
operators of qualified facilities are found in §112.6. Additionally,
there is no facility diagram requirement for Tier I qualified
facilities.

Reference to “oil storage containers” should be changed. The Agency
disagrees with the comments to remove the term “oil storage
container” in favor of the terms “bulk storage” or “bulk storage
containers” because the facility diagram requirements include other
containers that do not fall into this category (i.e., oil-filled
operational equipment, flow through process vessels, mobile/portable
containers).  The term “oil storage containers” encompasses all of
these.

Dedicated permanent storage area. The Agency disagrees with
commenters’ suggestion that the facility diagram should only include
dedicated, permanent storage areas where significant quantities of
mobile or portable containers are located. The Agency believes and
clearly stated in preamble to the proposed rule (72 FR 58378, October
15, 2007) that mobile or portable containers should be marked on the
facility diagram in their out-of-service or designated storage area,
primary storage areas, or areas where they are most frequently located,
and believes that the final rule language accomplishes this purpose. The
Agency disagrees with the suggestion of allowing a PE to require
additional details as appropriate instead of requiring the facility
diagram to include all oil transfer stations and connecting pipes. The
Agency believes that identifying the location of transfer stations and
connecting piping on the facility diagram is necessary to ensure safe
and efficient response actions, effective spill prevention and emergency
planning, ease of Plan review by an EPA inspector, and proper
implementation of the Plan by facility personnel.

V.C  	Indicating Complicated Areas of Piping or Oil-Filled Equipment on
a Facility Diagram

Issue: A facility diagram must also include all transfer stations and
connecting pipes (§112.7(a)(3)). Associated piping and oil-filled
manufacturing equipment present at an SPCC-regulated facility may be
difficult to clearly present on a facility diagram, due to their
relative location, complexity, or design. Therefore, in the October 2007
proposal (72 FR 58378, October 15, 2007), EPA requested comment on
whether a rule revision is appropriate to provide further clarification
on how complicated areas of piping or oil-filled equipment may be
indicated on the facility diagram.

COMMENTS

Support

Support clarification for methods of diagramming complex piping or
oil-filled equipment. Several commenters requested examples of piping or
oil-filled equipment schematics, or further clarification of acceptable
diagrams. (43, 55, 75, 112, 121, 143)

Support Rule Revision. Commenters supported and encouraged EPA to
clarify via rule revision the guidance that they have published in the
SPCC Guidance for Regional Instructors. The commenters believe that in
this guidance document EPA allows the appropriate flexibility in the way
the facility diagram is drawn. (100, 112, 121) Another commenter
requested a regulatory amendment incorporating the example from the
proposal that simplified schematic representations of piping combined
with a description in the Plan may be sufficient. (43)  Another
commenter recommended that EPA allow a deviation to SPCC Plan
requirements to allow flexibility by the P.E. in determining what is
appropriate for the facility diagram by adding § 112.7(a)(3) to the
environmental equivalence provision in § 112.7(a)(2). (111)

Other Suggested Approaches

Oil-filled equipment. A commenter requested that EPA modify the rule
language to provide flexibility in showing operational equipment on the
facility diagram. (128)   Commenters suggested that oil-filled equipment
located in buildings with multiple floors, or in process areas with
numerous other pieces of equipment, such as hydraulic units, electrical
equipment and machinery lubrication systems, is difficult to delineate
and should not be required to be shown in the facility diagram (111,
113, 128). Commenters believe that the requirement to include the
contents, even on a table or key accompanying the SPCC Plan, is not
practical for the number of piping, oil filled equipment, and transfer
areas that may be present at a complex site such as a refinery or
chemical plant. These commenters recommended that EPA limit the diagram
requirements to fixed bulk oil storage containers only. (111, 113)

 Methods to provide details. Two commenters suggested describing
oil-filled equipment rather than specifically identifying it on a
facility drawing. (64, 128) One commenter added that the SPCC Plan could
include a description of the number of oil-filled equipment that
contains storage capacities greater than 55-galllons and could include a
table identifying the oil-filled equipment and associated storage
capacities. The commenter believes that this would provide the necessary
information in the SPCC Plans to support response personnel in the event
of a spill. (64) One commenter considered the clarification as a formal
endorsement of the use of electrical one-line diagrams in identifying
spatial arrangement of oil-filled electrical equipment, and also offers
relief for facilities “with ‘hard-piped’ tank systems. (110) Other
commenters indicated that it may be difficult to include piping detail
on a diagram and that operators should be allowed either to label an
area or provide this information through the use of flow charts, piping
inventories, summary statements, drawings, keys, tables or other means.
(85, 111, 112)  Another commenter requested clarification that EPA does
not mandate detailed piping diagrams that may not be available.  (88)

Define transfer stations. A commenter requested revisions to the
Guidance document to allow additional flexibility for representing
piping on facility diagrams. The commenter suggested that the Guidance
document should define transfer stations as “locations where oil is
transferred between bulk storage containers,” which “would eliminate
the need to show equipment piping on the diagram.” (92)

Types of piping. One commenter asked EPA to modify the rule to clarify
the types of piping required on the facility diagram. The commenter
indicated that hydraulic and lubrication tubing is complex, and drawings
may not be available on older equipment, making production of facility
diagrams depicting this piping is unnecessarily burdensome. The
commenter recommended that the definition of “connecting piping”
should be limited to that associated with bulk storage tanks. (128)
Another commenter indicated that showing hydraulic lines and equipment
piping on a facility diagram is unnecessary because the lines may be
integral to the equipment and difficult to draw on a scale typically
used on SPCC plans. (92)  Another commenter requested that EPA clarify
that an operator may simply identify on the facility diagram areas that
contain piping associated with outdoor tanks and by doing so is
providing sufficient information. The commenter suggested that indoor
piping poses no risk to navigable waters; and outdoor piping system
diagrams may not exist for older manufacturing plants. (88)

RESPONSE

Support clarification for methods of diagramming complex piping or
oil-filled equipment. The Agency agrees with those commenters who
believe that the guidance adequately addresses the flexibility for
complying with these requirements.

Support Rule Revision. EPA disagrees with the commenters and believes
that no additional rule amendment is necessary. In contrast with the
current requirements for oil-filled equipment and piping, previous
regulatory requirements for mobile or portable containers did not allow
the same flexibility. Thus, the Agency is amending the language
pertaining to the mobile or portable containers, but the Agency does
believe it is necessary to provide an amendment for requirements that
already offer equivalent flexibility for oil-filled equipment and piping
as they are typically associated with fixed operations. Additionally,
the Agency disagrees with the request for a regulatory amendment to
incorporate the example from the proposal regarding the use of
simplified schematic representations of piping with descriptions in the
Plan. That statement in the proposal (72 FR 58389, October 15, 2007) was
provided only as an example of an approach that may be sufficient to
satisfy facility diagram requirements for complicated areas of piping.

	EPA also disagrees with the request for a regulatory amendment to allow
deviations under the environmental equivalence provision for facility
diagram requirements.  The facility diagram is an important component of
an SPCC Plan because the diagram is used for prevention, planning,
inspection, management, and response considerations. EPA and facility
inspectors, responders, and facility personnel need to be aware of the
location of all containers, piping, and transfer areas subject to the
SPCC rule. The facility diagram may also assist response efforts by
helping responders determine the flow pathway of discharged oil and take
more effective measures to control the flow of oil. Diagrams may also
help federal, state, or facility personnel avoid certain hazards and
identify the location of facility response equipment. Finally, by
informing responders of the location and content of containers, a
facility diagram helps to ensure their safety in conducting response
actions and protecting property. The Agency believes that the
requirements under the facility diagram provision adequately serve these
purposes, and that environmental equivalence deviations would limit its
usefulness.

Oil-filled equipment. The Agency disagrees with the commenter requesting
rule revisions. The Agency interprets the requirement at §112.7(a)(3)
to allow an owner or operator of a facility to represent such systems in
a less detailed manner on the facility diagram  in the SPCC Plan, as
long as more detailed diagrams of the systems are maintained elsewhere
at the facility and this location is referenced in the SPCC Plan.  The
SPCC Guidance for Regional Inspectors describes the Agency’s
interpretation of the requirements for a facility diagram as allowing an
owner or operator to determine the scale and level of detail to be shown
on a facility diagram according to the needs and complexity of the
facility.  The guidance document illustrates how the current regulatory
requirement allows flexibility in the way the facility diagram is drawn
to include complex designs of oil-filled equipment or pipelines.

Methods to provide details. The Agency disagrees with comments that
argue that additional flexibility is warranted by allowing a description
of the number of oil-filled equipment rather than specifically
identifying it on a facility drawing.  The relief the Agency is
finalizing addresses the complexity of identifying mobile/portable
containers in a facility diagram; the same complexity would not be
present when indicating where a fixed piece of equipment is located at a
facility, such as oil-filled equipment. Additionally, not having this
information readily available as part of a facility diagram would not
provide the immediate location information response personnel need in
support of a spill event.

The owner or operator of a facility is already allowed to identify
spatial arrangement of oil-filled electrical equipment in a less
detailed manner on the facility diagram in the SPCC Plan, as long as the
information is contained in more detailed diagrams of the systems or is
contained in some other form and such information is maintained
elsewhere at the facility and this location is referenced in the SPCC
Plan (§112.7(a)(3 )).  The SPCC Guidance for Regional Inspectors
describes the Agency’s interpretation of the requirements for a
facility diagram that allows the owner or operator to determine the
scale and level of detail shown according to the needs and complexity of
the facility. The guidance document illustrates the flexibility under
the current regulatory requirement in the way the facility diagram can
be drawn to include complex designs of oil-filled equipment or
pipelines.

As noted in the guidance document, schematic representations that
provide a general overview of the piping service (for example,
supply/return) may provide sufficient information when combined with a
description of the piping in the SPCC Plan. Alternatively, overlay
diagrams showing different portions of the piping system may be used
where the density and/or complexity of the piping system would make a
single diagram difficult to read. For areas of complicated piping, which
often include different types, numbers, and lengths of pipes, the
facility diagram may show a simplified box labeled “piping” or show
a single line that identifies the service (for example, supply/return),
as long as more detailed diagrams are available elsewhere at the
facility. Therefore, because the existing regulations already provide
adequate flexibility and because we believe that amending the regulatory
text will not provide any greater clarity, we have decided not to
provide further amendment to the rule.

Define transfer stations. The Agency disagrees that the guidance should
be revised to include a definition for transfer stations or areas.  EPA
believes that the guidance adequately describes transfer stations as any
location where oil is transferred.  The amendments to the facility
diagram requirement were focused on allowing flexibility in addressing
the complexity of identifying mobile/portable containers and complicated
piping.  The guidance document provides a number of examples that
demonstrate the flexibility allowed for representing piping on facility
diagrams.

Types of piping. The Agency disagrees with the request to modify the
rule to clarify the types of piping required on the facility diagram.
As noted in the SPCC Guidance for Regional Inspectors, schematic
representations that provide a general overview of the piping service
(for example, supply/return) may provide sufficient information when
combined with a description of the piping in the Plan. Alternatively,
overlay diagrams showing different portions of the piping system may be
used where the density and/or complexity of the piping system would make
a single diagram difficult to read. For areas of complicated piping,
which often include different types, numbers, and lengths of pipes, the
facility diagram may show a simplified box labeled “piping” or show
a single line that identifies the service (for example, supply/return),
as long as more detailed diagrams are available elsewhere at the
facility.  Therefore, because the existing regulations already provide
adequate flexibility, and because we believe that amending the
regulatory text will not provide any greater clarity, we have decided
not to provide further amendment to the rule.

	The Agency also does not agree that connecting piping should be limited
to piping associated with bulk storage containers or that indoor piping
can be excluded from facility diagrams.  Piping associated with all
SPCC-regulated containers and equipment, whether indoors or outdoors,
are potential sources of oil discharges and must be represented on the
facility diagram.

VI. 	Loading/Unloading Racks

VI.A 	Loading/Unloading Rack

Issue: EPA proposed to define the term ‘‘loading/unloading
rack’’ and specify that this definition would govern the
applicability of the provisions at §112.7(h), Facility tank car and
tank truck loading/unloading rack. This new definition will provide
clarity to the regulated community over whether this provision applies
to a facility.  EPA proposed the following definition for
“loading/unloading rack” under § 112.2: “Loading/unloading rack
means a structure necessary for loading or unloading a tank truck or
tank car, which is located at a facility subject to the requirements of
this part. A loading/unloading rack includes a fixed platform, gangway,
or loading/unloading arm; and any combination of the following: piping
assemblages, valves, pumps, shut-off devices, overfill sensors, or
personnel safety devices.”

COMMENTS

Support Definition

Generally support. Many commenters expressed general support for the
proposed definition. (55, 66, 74, 84, 87, 97, 108, 110, 126, 143)

Oppose Definition

Proposed definition too broad. Several commenters opposed the proposed
definition, suggesting that it is too broad, including many
loading/unloading areas or equipment that would not normally be
considered “racks.” (92, 99, 121, 152) This (non-rack-specific)
equipment includes: “storage containers equipped with safety
platforms” (92); or "piping assemblages, valves, pumps, shut-off
devices, overfill sensors, or personnel safety devices" (88,152) One
commenter construed the definition as consisting of and requiring
satisfaction of three separate component categories, which are that the
“rack” must (i) be a structure necessary for loading/unloading a
tank truck or tank car, (ii) include at least one of the following: a
platform, a gangway, a loading arm or an unloading arm, and (iii)
include at least one of the following: piping assemblages, valves,
pumps, shut-off devices, overfill sensors, or personnel safety devices.
The commenter argued that application of these regulatory provisions to
real-world scenarios would become complicated and possibly contradictory
for certain devices at regulated facilities. (121) Another commenter
expressed a similar sentiment, arguing, for example, that the use of
“or” in “platform, gangway, or loading/unloading arm” combined
with the remainder of the definition implies that any transfer from a
platform into a tank via a valve is considered a transfer at a
loading/unloading rack. (125)  Another commenter also questioned the use
of the word “or” in “platform, gangway, or loading/unloading.”
(43) Another commenter questioned why the presence of features such as
overfill sensors or personnel safety devices should trigger more
stringent sized secondary containment requirements that those areas that
do not contain those features. (121)

Proposed definition too subjective. One commenter expressed concern that
the definition of loading rack does not distinguish a facility with a
loading rack from a facility “where filling/emptying is accomplished
by direct connection to the same tanks.” (82)  The commenter believes
the distinction is arbitrary given that loading racks that serve only
USTs at 40 CFR Part 280 or 281 facilities have never been regulated.
(82)

Definition of “loading arm.” One commenter expresses concern that,
by not defining “loading arm,” EPA might inadvertently cause hoses
used at loading racks to be identified as loading/unloading arms. (72)
Two other commenters suggested EPA clearly state that the essential
component of a loading/unloading rack is the loading arm and define a
loading/unloading arm as “at least two articulated parts that are
connected in such a way that relative movement is feasible to transfer
product via top or bottom loading/unloading to a transportation
vehicle.” (111, 113)

New definition will not cover all rural facilities. One comment states
that, in the state of Alaska, many rural facilities and virtually all
loading/unloading areas on the North Slope oil field do not have a
gangway and a fixed loading arm, so the proposed definition will leave
the loading/unloading areas of these facilities unregulated under SPCC,
allowing further opportunity for polluting behavior. (146) The commenter
pointed out, however, that state regulations will still cover many areas
on the North Slope. (146)

Rationale for special regulation of loading/unloading racks. One
commenter believes that EPA has not provided a rationale for determining
the containment requirements for loading racks and questioned why the
containment requirements vary for transfers occurring at loading racks,
transfer areas and at completely buried tanks exempt from SPCC
regulation. (125)

Other Suggested Definitions and Approaches

Clarify essential aspects of loading racks. One commenter suggested that
the Agency clarify what is essential for a loading rack by stating: “A
loading/unloading rack includes a platform, and/or gangway, and a
loading/unloading arm.” (112) Commenters requested that EPA clearly
define each term required to be present to constitute a rack (i.e.,
platform, gangway, or loading/unloading arm). (74, 88) A commenter also
requested that EPA add photographs to the Guidance displaying examples
of necessary components. (74) One commenter questioned whether any
manmade structure in a loading or unloading area is considered a
platform. (88)

Two other commenters suggested EPA clearly state that the essential
component of a loading/unloading rack is the loading arm and define a
loading/unloading arm as “at least two articulated parts that are
connected in such a way that relative movement is feasible to transfer
product via top or bottom loading/unloading to a transportation
vehicle.” (111, 113) One commenter stated that if EPA prefers not to
base the definition on throughput, it should be made clear that a
loading or unloading arm is a requirement for a rack, as opposed to a
‘platform, gangway, or loading/unloading arm.’ (43)

	One commenter “recommends that accessories such as piping
assemblages, valves, pumps, shut-off devices, overfill sensors,
personnel safety devices be deleted from the definition, as these may or
may not be a part of the rack, and one or more of these devices (e.g.,
overfill sensors) are typically present on most tanks.” The commenter
also “recommends that the definition of loading/unloading rack be
narrowed to cover only permanently installed platforms, gangways or
loading/unloading arms used in the loading or unloading of tank trucks
or tank cars. (92) Additionally, commenters requested that EPA clarify
that loading/unloading operations utilizing a single hose and connection
or standpipe are not considered racks (92, 111); even when these
operations occur in areas where there is a platform or gangway (121);
facility loading/unloading docks (concrete platforms) are not considered
loading/unloading racks (92); platforms used to access tanks are not
classified as loading racks. (92, 99)

Confirm that flexible hoses used in loading or unloading should not be
considered loading/unloading arms.  Commenters requested that EPA
confirm that flexible hoses used in loading or unloading should not be
considered loading/unloading arms. (90, 102, 112, 113, 134)

Base definition on throughput threshold. Commenters suggested a
throughput threshold for a loading area to be defined as a loading rack.
(43, 66, 121) One commenter recommended that the definition require that
the tank truck, rail car, or vessel being loaded or unloaded is
transportation-related and not an intra-facility tank vehicle. The
commenter also suggested defining racks by limiting racks to those
loading/unloading facilities with an average daily throughput in excess
of a specified threshold. The commenter provided this example: An annual
average of 100 trucks, on a five-year rolling average at 12,000 gallons
per truck, would be equivalent to 1.2 million gallons per year. The
commenter believes that using a rolling average would prevent unusual
events, such as the emptying of a large tank for internal inspection,
from triggering the definition of a loading rack. (43) Another commenter
recommended a throughput threshold of 800,000 gallons per month, based
on the relatively low risk of spill when petroleum product is
transferred only occasionally. (66) Similarly, another commenter
recommended a throughput threshold of at least 830,000 gallons of oil
loaded/unloaded per month, calculated annually. (121) Other commenters
suggested that EPA narrow the definition of loading/unloading racks by
associating the definition with the flow-rate capacities of the pump
systems typically associated with the equipment. (110, 121)

Oil-filled equipment. A commenter requested that EPA clarify that
loading/unloading racks are not typically associated with oil-filled
operational equipment. (110)

Size of transfer. One commenter suggests that small tank
transfers—using a small transfer hose to fill a shop built tank, and
therefore having the potential of only a small release (one which could
be managed with absorbents)—should be viewed as a loading area and
require compliance with §112.7(c), whereas large tank transfers—using
a larger hose equipped with a hose coupler and either the trucks’
internal pump at rates up to 400 gpm or a stationary pump at a rate
greater than 50 gpm to transfer product, with the consequent risk of a
larger release—should be viewed as a loading rack and require
compliance with §112.7(h). (23)

Clarify equipment described applies only to tank cars or tank trucks at
the loading/unloading rack.  Commenters requested that 40 CFR
112.7(h)(2) be revised to clarify that the equipment described applies
only to tank cars or tank trucks located within the loading/unloading
rack and not to tank cars or trucks waiting to enter the
loading/unloading rack. (111, 113)  The commenters also recommended
removing the reference to “flexible or fixed oil transfer lines” and
replacing it with “loading/unloading arm.” One commenter reasoned
that this particular change incorporated the commenter’s prior
clarification that loading/unloading arms are an essential component of
a rack. (111) The commenters offer this revision of §112.7(h)(2):
“Provide an interlocked warning light or physical barrier system,
warning signs, wheel chocks or vehicle brake interlock system to prevent
vehicles from departing before complete disconnection of the
loading/unloading arm.” (111, 113)

Remove specific language from definition. Commenters suggested that
“equipment that is not unique to loading racks should not be included
in the definition.” (152)  One commenter “recommends that
accessories such as piping assemblages, valves, pumps, shut-off devices,
overfill sensors, personnel safety devices be deleted from the
definition, as these may or may not be a part of the rack, and one or
more of these devices (e.g., overfill sensors) are typically present on
most tanks. (92) Another commenter questioned why the presence of
features such as overfill sensors or personnel safety devices should
trigger more stringent sized secondary containment requirements that
those areas that do not contain those features. (121).

Use “transfer areas” to refer to “loading and unloading areas. A
commenter requested that EPA refer to “loading and unloading areas”
as “transfer areas” in the final rulemaking and in the guidance
document to avoid any confusion between a rack and a transfer area.
(113)

Other Proposed Definitions of Loading/Unloading Rack. Commenters
proposed the following definitions for loading/unloading rack:

"Loading/unloading rack means a structure located primarily for loading
or unloading a rail car or tank truck or other similar transportation
vessel, which is located at a facility subject to the requirements of
this part. A loading/unloading rack, by definition, includes all of the
following: a fixed platform, gangway, a fixed piping loading/unloading
arm, and a fixed piping/transfer system for material delivery.” (72)

“A loading / unloading rack would not include those structures
(portable or fixed) primarily designed for the purposes of providing
fall protection to employees while loading tank trucks or wagons via
portable hose / hose connections if the loading station is located such
that a release from the operation would be prevented from migrating off
site or into waters of the ’state‘ via a PE approved site
containment feature." (72)

"Loading/unloading rack means a permanent, fixed structure necessary for
loading or unloading a tank truck or tank car, which is located at a
facility subject to the requirements of this Part. A loading/unloading
rack includes a loading/unloading arm as an essential component. A
loading/unloading rack may also include a platform or gangway and/or any
combination of the following: piping assemblages, valves, pumps,
shut-off devices, overfill sensors, or personnel safety devices." (111,
113)

“A structure necessary for loading or unloading a tank truck or tank
car, which is located at a facility subject to the requirements of this
part. A loading/unloading rack includes a loading/unloading arm; and any
combination of the following: a platform, gangway, piping assemblages,
valves, pumps, shut-off devices, overfill sensors, or personnel safety
devices." (99)

One commenter suggested that the definition be changed to state
affirmatively what is not a loading rack. The commenter thinks the term
should not include:

nozzled connection to a tank (i.e., one nozzle to one tank connection)
is not a rack, even if multiple tank/connections are located in one
loading area

connection consisting of a flexible hose does not constitute a rack;

single connection with a valve is not a rack; and

loading structure that is not overhead is not a rack.”

This commenter also requested that EPA remove references of unloading
from the definition.  The commenter believes that EPA has not
appropriately justified including unloading in the definition and took
out of context references to unloading in the API letter. The commenter
believes that API suggested that EPA limit the applicability of the term
only to petroleum refineries, bulk plants, and marketing terminals
because those sites have significant loading and unloading operations
occurring at regular intervals. The commenter also argued that the
secondary containment requirements for the loading rack would also serve
to protect against any lesser risk associated with unloading and where
unloading occurs in a location other than a loading rack, the unloading
activity would be subject to the general secondary containment
requirements in §112.7(c). (88)

RESPONSE

Support Definition

Generally support. EPA agrees with commenters who expressed general
support for the proposed amendment. (55, 66, 74, 84, 87, 97, 108, 110,
126, 143)  However, EPA has made some revisions to the definition in
response to the comments received.  EPA has promulgated the following
definition for “loading/unloading rack” under § 112.2:
“Loading/unloading rack means a fixed structure (such as a platform,
gangway) necessary for loading or unloading a tank truck or tank car,
which is located at a facility subject to the requirements of this part.
A loading/unloading rack includes a loading or unloading arm, and may
include any combination of the following: piping assemblages, valves,
pumps, shut-off devices, overfill sensors, or personnel safety
devices.”

Oppose Definition

Proposed definition too broad. EPA agrees that the proposed definition
could be refined to provide clarity and address the concerns associated
with the “broad” and “subjective” scope of the definition. The
Agency does not intend this definition to include simple loading or
unloading configurations, but rather to only include the equipment and
structure associated with loading/unloading arms.

EPA believes that providing the list of equipment usually associated
with a loading/unloading rack will be useful for the owner/operator and
the Professional Engineer (PE) in determining the applicability of the
rule requirements at §112.7(h) to the facility. The Agency agrees with
commenters that the key to the definition is the presence of a loading
arm in association with a permanent structure and other equipment. Thus,
the agency has added the phrase “a loading/unloading rack includes a
loading or unloading arm” in the definition to clarify this point. A
commenter requested clarification regarding proposed definition
requiring three separate components.  While the proposed definition did
require three separate components for equipment to be considered a
loading rack, the definition finalized today now requires (1) a fixed
structure for loading or unloading a tank car or tank truck; (2) the
equipment must be at a facility subject to the rule; (3) a
loading/unloading arm; and (4) any combination of piping assemblages,
valves, pumps, shut-off devices, overfill sensors, or personnel safety
devices. EPA has made these revisions to the definition in response to
the comments received.  EPA believes that the definition finalized in
today’s action is clear and provides specificity as to the type of
equipment that is considered a loading or unloading rack.  EPA’s final
modification to the term loading rack no longer includes the word
“or” as in the proposed “platform, gangway, or
loading/unloading” phrase.  EPA agrees that a structure and a loading
or unloading arm must be present for the equipment to meet the
definition of a loading or unloading “rack” (as well as meeting the
other elements of the definition).  The additional equipment (overfill
sensors or personnel safety devices) do not alone trigger more stringent
requirements.  Rather this phrase serves as examples of equipment that
is typically present at a loading or unloading rack, which would further
assist regulated community with the applicability of this term.

Proposed definition too subjective. EPA disagrees with the comment that
the definition of loading rack does not distinguish a facility with a
loading rack from a facility where oil transfer is accomplished by
direct connection to the same tanks. The definition includes the phrase
“necessary for loading or unloading a tank truck or tank car”
indicating that the term does not apply to a transfer between two fixed
bulk storage tanks rather it address transfers to or from a bulk storage
tank and a tank car or tank truck. Additionally, EPA clarifies that
transfers associated with equipment attached to exempt USTs are subject
to SPCC regulation, which is consistent with earlier rule changes (71 FR
77283, December 26, 2006).

Definition of “loading arm.”  A definition for loading arm was not
proposed, and is therefore outside the scope of this rulemaking. EPA
understands, consistent with commenters, that a loading/unloading arm is
typically a movable piping assembly that may include fixed piping or a
combination of fixed and flexible piping, typically with at least one
swivel joint (that is, at least two articulated parts that are connected
in such a way that relative movement is feasible to transfer product via
top or bottom loading/unloading to a tank truck or rail car). However,
certain loading/unloading arm configurations present at loading racks
may include a loading arm that is a combination of flexible piping
(hoses) and rigid piping without a swivel joint. In this case, a swivel
joint is not present on the loading arm because flexible piping is
attached directly to the rigid piping of the loading arm and the
flexible hose provides the movement needed to conduct loading or
unloading operations in lieu of the swivel joint.

New definition will not cover all rural facilities. Commenters raised
concerns that, because of the new loading rack definition, many transfer
operations (particularly those at rural facilities with no gangways or
fixed loading arms) will not be regulated under SPCC rule. The Agency
disagrees with this assertion. Although the Agency intends the new
definition of loading rack to clearly delineate those facilities subject
to the regulatory requirements at §112.7(h) (such as sized secondary
containment), any otherwise regulated SPCC facility will still be
subject to general secondary containment requirements under §112.7(c)
for all areas where oil is transferred into or out of any regulated
container.

Rationale for special regulation of loading/unloading racks. EPA did not
propose to change the containment requirements for loading or unloading
racks or other transfer areas and therefore this comment is outside the
scope of this rulemaking. However, EPA clarifies that loading rack
equipment attached to exempt USTs are subject to the SPCC rule, which
consistent with earlier rule changes (71 FR 77283, December 26, 2006).

Other Suggested Definitions and Approaches

Clarify essential aspects of loading racks. EPA agrees that the proposed
definition of “loading/unloading rack” should be refined to provide
clarity and address the concerns about the scope of the definition.
Therefore, EPA has modified the proposed definition to provide more
clarity by addressing concerns that a loading/unloading arm is an
essential component of a loading rack, while describing other components
that may be found at a loading or unloading rack. EPA did not propose to
define platform, gangway, or loading/unloading arm, thus definitions for
these terms were not finalized. However, the fixed structure (such as a
platform or gangway) is typically the equipment used to support the
loading and/or unloading arm and often houses the piping, assemblages,
valves, pumps shut-off devices, overfill sensors, or personnel safety
devices listed as examples of equipment to load or unload a tank or rail
car.  Note that this list of equipment is not exhaustive and lists
typical, but, not all equipment that may be present at a loading rack.
Every man made structure may not serve this function but this evaluation
must be made on a site specific basis. EPA understands, consistent with
commenters, that a loading/unloading arm is typically a movable piping
assembly that may include fixed piping or a combination of fixed and
flexible piping, typically with at least one swivel joint (that is, at
least two articulated parts that are connected in such a way that
relative movement is feasible to transfer product via top or bottom
loading/unloading to a tank truck or rail car). However, certain
loading/unloading arm configurations present at loading racks may
include a loading arm that is a combination of flexible piping (hoses)
and rigid piping without a swivel joint. In this case, a swivel joint is
not present on the loading arm because flexible piping is attached
directly to the rigid piping of the loading arm and the flexible hose
provides the movement needed to conduct loading or unloading operations
in lieu of the swivel joint. The presence of concrete platforms does not
specifically exempt a transfer area from the definition of loading rack.
 A concrete platform may be part of a loading rack if the platform
serves to support a loading and/or unloading arm and houses the type of
equipment referenced in the definition, necessary to load or unload a
tank or rail car. Every concrete platform structure may not serve this
function but this evaluation must be made on a site specific basis.
Finally, EPA plans on updating the inspectors guidance document to
address comments and suggestions provided by commenters relating to the
definition of loading rack.

Confirm that flexible hoses used in loading or unloading should not be
considered loading/unloading arms. Equipment present at a loading/
unloading areas where a pipe stand connects to tank car or tank truck
via a flexible hose, which is not equipped with a loading arm, is
generally not considered a loading or unloading rack as defined in this
action. However, the presence of flexible hoses on oil transfer
equipment does not always indicate that the equipment is exempt from the
definition of loading rack, as some top and bottom loading racks are
made up of a combination of steel loading arms connected by flexible
hosing.

Base definition on throughput threshold.  EPA considered, but did not
agree with, this alternative in developing the definition for
loading/unloading rack promulgated in this notice. However, the
commenters suggestions included limited supporting data for a threshold
based criteria (such as the 800,000 gallon monthly threshold). The
complexity in determining a rack’s throughput for a given time period
would add additional burden on the owner and operator of a facility,
making this a a less attractive option in today’s efforts to
streamline requirements. Furthermore, there is no basis for deciding on
a specific time period for making this determination. Thus, EPA is not
basing its definition of loading/unloading rack on a “racks”
throughput, but rather on equipment. The determination of whether the
particular equipment at a facility constitutes a loading or unloading
rack will often be a site-specific determination, however, EPA believes
the definition finalized today will assist the regulated community in
making this determination.

Oil-filled equipment. The definition typically will not include
oil-filled equipment; however transfers associated with oil-filled
operational equipment where a rack is not present are still required to
meet the general containment requirements of §112.7(c).