[Federal Register: November 13, 2009 (Volume 74, Number 218)]
[Rules and Regulations]
[Page 58783-58832]
[DOCID:fr13no09-13]

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Part III

Environmental Protection Agency

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40 CFR Part 112

Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule--Amendments; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8979-8]
RIN 2050-AG16

Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure (SPCC) Rule--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On December 5, 2008, EPA amended the Spill Prevention Control,
and Countermeasures (SPCC) rule to provide increased clarity with
respect to specific regulatory requirements, to tailor requirements to
particular industry sectors, and to streamline certain rule
requirements. The Agency subsequently delayed the effective date of
these amendments to January 14, 2010, to allow the Agency time to
review the amendments to ensure that they properly reflect
consideration of all relevant facts. EPA also requested public comment
on the delay of the effective date and its duration, and on the
December 2008 amendments. Having reviewed the record for the amendments
and the additional comments, EPA has decided to make only limited
changes to the amendments. With respect to the majority of the December
amendments, EPA is either taking no action or providing minor technical
corrections. EPA is, however, removing the following provisions in the
December 2008 amendments: the exclusion of farms and oil production
facilities from the loading/unloading rack requirements; the exemption
for produced water containers at an oil production facility; and the
alternative qualified facility eligibility criteria for an oil
production facility.

DATES: This final rule is effective on January 14, 2010.

ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA-HQ-
OPA-2007-0584, contains the information related to this rulemaking,
including the response to comment document. All documents in the docket
are listed in the index at http://www.regulations.gov. Although listed
in the index, some information may not be publicly available, such as
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically at http://www.regulations.gov or in hard copy at the EPA
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number of the Public Reading Room is<PHONE_NUMBER>, and the telephone
number to make an appointment to view the docket is<PHONE_NUMBER>.

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

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Final Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
    A. Final Amendments Effective without Change
    1. Hot-Mix Asphalt (HMA)
    2. Pesticide Application Equipment and Related Mix Containers
    3. Applicability of Mobile Refueler Requirements to Farm Nurse
Tanks
    4. Residential Heating Oil Containers
    5. Definition of Facility
    6. Facility Diagram
    7. Loading/Unloading Racks
    8. General Secondary Containment
    9. General Secondary Containment for Non-Transportation-Related
Tank Trucks
    10. Security
    11. Integrity Testing
    12. Integrity Testing Requirements for Animal Fats and Vegetable
Oils
    13. Oil Production Facilities
    a. Definition of Production Facility
    b. Modifications to Sec.  112.9 for Drilling and Workover
Facilities
    c. Exemption for Certain Intra-Facility Gathering Lines
    d. Flowlines and Intra-facility Gathering Lines
    (i) Compliance Alternative in Lieu of Secondary Containment for
Flowlines and Intra-facility Gathering Lines
    (ii) Contingency Plan for Flowlines and Intra-facility Gathering
Lines
    (iii) Requirements for a Flowline and Intra-Facility Gathering
Line Maintenance Program
    e. Flow-Through Process Vessels
    (i) Exemption from Sized Secondary Containment for Flow-Through
Process Vessels
    (ii) Additional Requirements in Lieu of Sized Secondary
Containment for Flow-Through Process Vessels
    (iii) Reportable Discharge from Flow-Through Process Vessels
    f. Alternative Compliance Measures for Produced Water Containers
    g. Clarification of the Definition of Permanently Closed
Containers
    14. Man-made Structures
    15. Wind Turbines
    16. Technical Corrections
    B. Technical Corrections to Provisions of the December 2008
Amendments
    1. Tier I Qualified Facilities and Appendix G Plan Template
    2. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
    3. SPCC Plan Preparation and Implementation for New Oil
Production Facilities
    4. Compliance Date Provisions Specific to Farms
    C. Provisions Removed from Final Rule
    1. Exclusions for Oil Production Facilities and Farms from
Loading/Unloading Rack Requirements
    2. Alternative Qualified Facility Eligibility Criteria for an
Oil Production Facility
    3. Exemption for Produced Water Containers
    D. Oil and Natural Gas Pipeline Facilities
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order--13132 Federalism
    F. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children from
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. General Information

    On December 5, 2008, the Environmental Protection Agency (EPA or
the Agency) amended the Spill Prevention, Control, and Countermeasure
(SPCC) rule to address a number of issues raised by the regulated
community (73 FR 74236). EPA is now amending the December

2008 amendments to make technical corrections. In addition, EPA has
decided to remove three provisions from the SPCC rule it had adopted in
December 2008. In all other respects, the amendments have not been
changed. The following provisions, which are intended to clarify,
tailor, and streamline certain requirements for those facility owners
or operators who are required to prepare and implement an SPCC Plan (or
``Plan''), will become effective without modification:
     Exemption for hot-mix asphalt (HMA);
     Exemption for pesticide application equipment and related
mix containers, regardless of ownership or where used, that may
currently be subject to the SPCC rule when crop oil or adjuvant oil is
added to pesticide formulations;
     Exemption for residential heating oil containers, which
applies to aboveground containers, as well as completely buried heating
oil containers, at single-family residences, including those located at
farms;
     Clarification that the definition of mobile refueler
includes a nurse tank, which is a mobile/portable container used at
farms to store and transport fuel for transfers to or from farm
equipment (such as tractors and combines) to other bulk storage
containers (such as containers used to provide fuel to wellhead/relift
pumps) at the farm;
     Amendment of 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 reaffirm that the ``facility''
definition governs the applicability of 40 CFR part 112;
     Amendment of the facility diagram requirement at Sec.
112.7(a)(3) to clarify how containers, fixed and mobile, are identified
on the facility diagram. EPA also clarified that 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 can include that information separately in the SPCC
Plan in an accompanying table or key. For any mobile or portable
containers located in a certain area of the facility, an owner or
operator can mark the area on the diagram, as well as indicate the
potential range in number of containers and the anticipated contents
and capacities of the mobile or portable containers;
     Definition of the term ``loading/unloading rack,'' and
clarification that this definition governs the applicability of the
provisions for facility tank car and tank truck loading/unloading racks
at Sec.  112.7(h);
     Amendment of the general secondary containment
requirements at Sec.  112.7(c) to clarify the scope of secondary
containment so that an owner or operator need only take into
consideration the typical failure mode, and most likely quantity of oil
that would be discharged, consistent with current Agency guidance. This
amendment also provides additional examples of prevention systems for
onshore facilities found at Sec.  112.7(c)(1);
     Extension of the exemption from the sized secondary
containment requirement for mobile refuelers provided in the December
2006 SPCC rule amendments (71 FR 77266, December 26, 2006) to non-
transportation-related tank trucks at a facility subject to the SPCC
rule;
     Amendment of the facility security requirements at Sec.
112.7(g) to allow an owner or operator of a facility to tailor his
security measures to the facility's specific characteristics and
location;
     Amendment of the requirements at Sec. Sec.  112.8(c)(6)
and 112.12(c)(6) to allow an owner or operator to consult and rely on
industry standards to determine the appropriate qualifications for
personnel performing tests and inspections, as well as the type and
frequency of integrity testing required for a particular container size
and configuration;
     Amendment of the integrity testing requirements at Sec.
112.12(c)(6) for an owner or operator of a facility that handles
certain types of animal fats and vegetable oils (AFVOs) so as to
provide the Professional Engineer (PE) or an owner or operator self-
certifying an SPCC Plan with the flexibility to determine the scope of
integrity testing that is appropriate for containers that store AFVOs,
based on compliance with certain FDA regulations and other criteria
relating to container construction and configuration;
     Amendment of the definition of ``production facility'' to
be consistent with the amended definition of ``facility'';
     Clarification that drilling and workover activities are
not subject to the provisions at Sec.  112.9;
     Alternative compliance option for flow-through process
vessels at oil production facilities requiring general secondary
containment and additional oil spill prevention measures in lieu of the
sized secondary containment requirements that would apply to this
equipment;
     Definition of the term ``produced water container'', and
an alternative compliance option for these containers at oil production
facilities requiring general secondary containment, a PE-certified
process or procedure designed to remove free-phase oil that accumulates
on the surface of the produced water container, and additional oil
spill prevention measures in lieu of the sized secondary containment
requirements that would apply to these containers;
     Exemption for certain intra-facility gathering lines
subject to requirements of the U.S. Department of Transportation's
(DOT's) pipeline regulations in 49 CFR parts 192 or 195;
     Specific requirements for a flowline/intra-facility
gathering line maintenance program and an alternative compliance option
of contingency planning for flowlines and intra-facility gathering
lines in lieu of the general secondary containment requirements; and
     Clarification of the definition of ``permanently closed''
as it applies to oil production facilities and containers present at an
oil production facility.

The following provisions of the 2008 amendments will become effective
with technical corrections:
     Exemption for underground oil storage tanks that supply
emergency diesel generators at nuclear power generation facilities,
revising the provision to state that the exemption applies ``provided
that such a tank is subject to any Nuclear Regulatory Commission
provision regarding design and quality criteria, including but not
limited to* * *'' (emphasis added);
     Designation of a subset of qualified facilities (``Tier I
qualified facilities'') with a set of streamlined SPCC rule
requirements. The owner or operator of a Tier I qualified facility has
the option to complete a self-certified SPCC Plan template (found in
Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. In Sec.
112.6 and the Appendix G SPCC Plan template, technical corrections
include clarifications and corrections of typographical and formatting
errors; and,
     Amendment of the compliance date provision for new oil
production facilities, so that it applies to new oil production
facilities that begin operations after November 10, 2010. This change
is necessary to align with the current compliance date for other
facilities.

In this notice, EPA is also removing the paragraphs in Sec.  112.3
specific to farms because on June 19, 2009 EPA established the same
compliance dates for farms as for all other facilities (74 FR 29136);
such differentiated provisions are no longer necessary.
    Additionally, EPA was particularly interested in receiving comments
on

these provisions as indicated in the February 2009 notice. After
consideration of all relevant facts and public comments, EPA is
removing the following provisions which were promulgated on December 5,
2008 from the SPCC regulation:
     The exemption for certain produced water containers that
do not contain oil in amounts that may be harmful as certified by a PE;
and
     The alternative criteria for an oil production facility to
be eligible to self-certify an SPCC Plan as a qualified facility.

The Agency is also removing the specific exclusion of oil production
facilities and farms from the loading/unloading rack requirements at
Sec.  112.7(h). Finally, EPA commits to continue inter-Agency
discussions with DOT to clarify jurisdiction over facilities as
described in the joint memorandum ``Jurisdiction over Breakout Tanks/
Bulk Storage Tanks (Containers) at Transportation-Related and Non-
Transportation-Related Facilities'' (February 4, 2000).
    This rulemaking marks the completion of the SPCC action proposed on
October 15, 2007 (72 FR 58378), finalized on December 5, 2008 (73 FR
74236), and for which the Agency considered public comments again in
February 2009 (74 FR 5900, February 3, 2009). Hereafter, comments
addressing the December 5, 2008 amendments will be referred to as
``comments from the 2009 comment period.'' However, EPA recognizes that
because of the changes in this action, and specifically provisions that
have been removed from the December 2008 Amendments, facilities may
need additional time to comply with the SPCC amendments. For example,
owners or operators of facilities with marginal wells may need a PE to
certify amendments to their SPCC Plan if the facility does not meet the
qualified facility eligibility criteria. Because of the uncertainty
surrounding the final amendments to the December 5, 2008 rule and the
delay of the effective date, the Agency will propose to extend the
compliance date.

II. Entities Potentially Affected by This Final Rule

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               Industry sector                         NAICS Code
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Oil Production...............................                     211111
Farms........................................                   111, 112
Electric Utility Plants......................                       2211
Petroleum Refining and Related Industries....                        324
Chemical Manufacturing.......................                        325
Food Manufacturing...........................                   311, 312
Manufacturing Facilities Using and Storing                      311, 325
 Animal Fats and Vegetable Oils..............
Metal Manufacturing..........................                   331, 332
Other Manufacturing..........................                      31-33
Real Estate Rental and Leasing...............                    531-533
Retail Trade.................................      441-446, 448, 451-454
Contract Construction........................                         23
Wholesale Trade..............................                         42
Other Commercial.............................     492, 541, 551, 561-562
Transportation...............................                    481-488
Arts Entertainment & Recreation..............                    711-713
Other Services (Except Public Administration)                    811-813
Petroleum Bulk Stations and Terminals........                       4247
Education....................................                         61
Hospitals & Other Health Care................                   621, 622
Accommodation and Food Services..............                   721, 722
Fuel Oil Dealers.............................                      45431
Gasoline stations............................                       4471
Information Finance and Insurance............                     51, 52
Mining.......................................                        212
Warehousing and Storage......................                        493
Religious Organizations......................                     813110
Military Installations.......................                     928110
Pipelines....................................                4861, 48691
Government...................................                         92
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    The list of potentially affected entities in the above table may
not be exhaustive. The Agency's goal is to provide a clear guide for
readers to consider regarding entities that potentially could be
affected by this action. However, this action may affect other entities
not listed in this table. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding section titled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority and Delegation of Authority

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

IV. Background

    The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164). On July 17, 2002, EPA

published a final rule amending the SPCC rule, formally known as the
Oil Pollution Prevention regulation (40 CFR part 112). The July 2002
rule amendments (67 FR 47042) included revisions to the requirements
for SPCC Plans and for Facility Response Plans (FRPs). It also included
new subparts outlining the requirements for various classes of oil;
revised the applicability of the regulation; amended the requirements
for completing SPCC Plans; and made other modifications. After
publication of these rule amendments, several members of the regulated
community filed legal challenges to certain aspects.\1\ All of the
issues raised in the litigation have now been resolved; EPA published
clarifications in the Federal Register to several aspects of the
amended rule (69 FR 29728, May 25, 2004).\2\ In a separate Federal
Register notice, the Agency published a final rule announcing the
vacatur of the July 17, 2002 definition of ``navigable waters'' in 40
CFR part 112,\3\ and restoring it back to the regulatory definition
promulgated by EPA in 1973 (73 FR 71941, November 26, 2008).
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    \1\ American Petroleum Institute v. Johnson, 571 F.Supp. 2d 165
(D.D.C. 2008). The only issue resolved through litigation was the
challenge to the definition of navigable waters in the July 2002
rule amendment.
    \2\ Several comments requested that the Agency codify the
clarifications as part of the December 2008 rulemaking. To the
extent the subject matter of the clarification were reflected in the
rulemaking, the Agency either incorporated the clarification in the
regulatory text or reaffirmed the Agency's position in the preamble.
See 73 FR 74236, December 5, 2008.
    \3\ This action was taken in accordance with an order issued by
the United States District Court for the District of Columbia
(D.D.C.) in American Petroleum Institute v. Johnson, 571 F.Supp.2d
165 (D.D.C. 2008).
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    Concerns were also raised about the ability to implement certain
aspects of the July 2002 rule amendments. As a result, EPA proposed
additional amendments to the SPCC rule in December 2005 and finalized
them in December 2006 to address a number of issues, including those
pertaining to certain ``qualified'' facilities, qualified oil-filled
operational equipment, motive power containers, mobile refuelers,
removal of provisions inapplicable to AFVOs, and the compliance date
for farms (71 FR 77266, December 26, 2006). Additionally, EPA made
available the SPCC Guidance for Regional Inspectors in December 2005.
This guidance document is intended to assist regional inspectors, as
well as members of the regulated community, in reviewing the
implementation of the SPCC rule at a regulated facility. The guidance
document is designed to provide more detail about the rule's
applicability, to help clarify the role of the inspector in reviewing
and evaluating a facility owner or operator's compliance with the
performance-based SPCC requirements, and to provide a consistent
national policy on several SPCC-related issues. The guidance is
available on the Agency's Web site at http://www.epa.gov/emergencies.
EPA intends to revise this guidance to address the regulatory
amendments in this action and the December 2006 amendments (71 FR
77266, December 26, 2006). EPA welcomes comments from the regulated
community and the public on the guidance document at any time.
Instructions for submitting comments are provided on the EPA Office of
Emergency Management Web site.
    On December 5, 2008 (73 FR 74236), EPA again amended the SPCC rule
to clarify certain provisions, to tailor requirements to particular
industry sectors, and to streamline certain rule requirements. These
requirements were to become effective on February 3, 2009. However, the
effective date of the December 2008 rulemaking was delayed for 60 days
from February 3, 2009 to April 4, 2009, in accordance with the January
20, 2009 White House memorandum entitled ``Regulatory Review,'' and the
January 21, 2009 memorandum from the Office of Management and Budget
entitled ``Implementation of Memorandum Concerning Regulatory Review''
(M-09-08, January 21, 2009 OMB memorandum). (These memoranda are
available for review in the docket for this rulemaking.) The Agency
took this action to ensure that the rule properly reflected
consideration of all relevant facts. Accordingly, EPA requested public
comment on the delay of the effective date and its duration, and
further comment on the regulatory amendments contained in the final
rule amendments (74 FR 5900, February 3, 2009). On April 1, 2009, the
Agency further delayed the effective date of the December 2008
rulemaking until January 14, 2010 (74 FR 14736). The Agency took this
action to allow sufficient time to address the comments received on the
February 3, 2009 notice. EPA is now promulgating several limited
revisions to the December 2008 amendments as a result of the Agency's
review of comments and consideration of all relevant facts.
    Section V of this notice describes EPA's action on the December
2008 amendments. For a complete discussion of the comments received
during the 2009 comment period, see Comment and Response Document for
2008 Final SPCC Amendments, Comment Period Ending March 2009, a copy of
which is available in the docket for this rulemaking.
    Furthermore, EPA has extended the dates for preparing or amending,
and implementing revised SPCC Plans in 40 CFR 112.3(a), (b), and (c) in
a rule published on June 19, 2009 (74 FR 29136). In that action, the
Agency also established dates for the owners and operators of farms to
prepare or amend their SPCC Plans, and implement those Plans.

V. This Action

A. Final Amendments Effective Without Change

    EPA has not modified the following provisions of the December 2008
amendments (73 FR 74236, December 5, 2008):
     Exemptions for HMA and HMA containers, pesticide
application equipment and related mix containers, and heating oil
containers at single-family residences, including those located at
farms;
     Clarification that the definition of mobile refueler
includes a nurse tank at farms;
     Amended definition of ``facility'' to clarify the existing
flexibility associated with describing a facility's boundaries;
     Amended facility diagram requirements to provide
additional flexibility;
     A definition of ``loading/unloading rack'' to clarify the
oil transfer equipment subject to the provisions for facility tank car
and tank truck loading/unloading racks, as well as amended provisions
for this equipment;
     Amended general secondary containment requirements to
provide more clarity;
     Exemption of non-transportation-related tank trucks from
the sized secondary containment requirements;
     Amended security requirements;
     Amended integrity testing requirements to allow greater
flexibility in the use of industry standards;
     Amended integrity testing requirements for containers that
store AFVOs and meet certain criteria;
     Amended definition of ``production facility'';
     Clarification that drilling and workover activities are
not subject to the provisions at Sec.  112.9;
     Exemption for certain intra-facility gathering lines at
oil production facilities from the SPCC requirements;
     More prescriptive requirements for a flowline/intra-
facility gathering line maintenance program for all oil production
facilities and an alternative

compliance option of contingency planning for flowlines and intra-
facility gathering lines in lieu of all secondary containment;
     Alternative compliance option for flow-through process
vessels at oil production facilities to comply with the general
secondary containment requirements and additional oil spill prevention
measures in lieu of the sized secondary containment requirements;
     A definition of ``produced water container'';
     Alternative compliance option to sized secondary
containment for produced water containers that includes general
secondary containment, a PE-certified process or procedure designed to
remove free-phase oil that accumulates on the surface of the produced
water container, and additional oil spill prevention measures;
     Clarification of the definition of ``permanently closed''
as it applies to an oil production facility; and
     Technical corrections.
    This preamble discusses each of these provisions, and any related
comments received during the 2009 comment period that raise substantive
policy issues, in more detail below. For a complete discussion of the
comments received in 2009, see Comment and Response Document for 2008
Final SPCC Amendments, Comment Period Ending March 2009, a copy of
which is available in the docket for this rulemaking.
1. Hot-Mix Asphalt (HMA)
    In the December 2008 amendments, EPA exempted HMA and HMA
containers from SPCC rule applicability. HMA is a blend of asphalt
cement (AC) and aggregate material, such as stone, sand, or gravel,
which is formed into final paving products. All types of asphalt,
including HMA, are petroleum products.
    EPA exempted HMA from SPCC rule applicability by adding a new
paragraph (8) under the general applicability section, Sec.  112.1(d),
and modifying Sec.  112.1(d)(2) so that the capacity of HMA containers
is not counted toward the facility's oil storage capacity calculation.
EPA took this action based on the fact that this material is unlikely
to flow as a result of the entrained aggregate, such that there would
be very few circumstances, if any, in which a discharge of HMA would
have the potential to reach navigable waters or adjoining shorelines.
This is particularly of concern at facilities subject to the SPCC
requirements solely because of the presence of HMA. See Section V.A of
the December 5, 2008 notice at 73 FR 74240 for more information about
this amendment.
    EPA received one comment that recommended that EPA also extend the
exemption to other products like paraffin wax, asphalt cement, certain
resins, and various animal fats, and suggested the exemption be based
on the unique ``self-containing'' characteristics of all these
materials and the low probability of a spill reaching navigable waters
or adjoining shorelines. The Agency disagrees with this comment. As EPA
discussed in the December 5, 2008 amendments, these materials, unlike
HMA, do have the potential to discharge in quantities that may be
harmful into navigable waters or adjoining shorelines, because they are
generally stored at elevated temperatures, and thus are capable of
flowing if there is a release from the container. Conversely, HMA is
unlikely to flow as a result of the entrained aggregate. The commenter
did not provide new or compelling data supporting their position.
Further, 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 no reasonable expectation of a
discharge of oil to navigable waters or adjoining shorelines from every
single oil container at the facility (excluding exempt containers),
then the facility would not be subject to the rule's requirements.
However, if the facility owner or operator determines that any oil
container (excluding exempt containers) may have a reasonable
expectation of a discharge of oil to navigable waters or adjoining
shorelines, then the facility is subject to the rule provisions.
    Other comments generally supported the amendments to the exemption
for HMA and HMA containers. Based on this and review of all relevant
facts, the Agency is making no changes to this provision.
2. Pesticide Application Equipment and Related Mix Containers
    In the December 2008 amendments, EPA added a new paragraph (10)
under the general applicability section, Sec.  112.1(d), to exempt all
pesticide application equipment and related mix containers regardless
of ownership or where used when crop oil or adjuvant oil is added to
the pesticide formulation. EPA also modified Sec.  112.1(d)(2) so that
the capacity of pesticide application equipment and related mix
containers is not counted toward the facility's oil storage capacity
calculation. Pesticide application equipment includes ground boom
applicators, airblast sprayers, and specialty aircraft containers/
equipment that are used to apply measured quantities of pesticides to
crops and/or soil. Related mix containers are those used to mix
pesticides with water and, as needed, adjuvant oils, just prior to
loading into the application equipment. EPA adopted this exemption
because this type of pesticide use and related mix containers are
already subject to regulation under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA), as codified in 40 CFR part 165, to assure
the safe use (including discharge), reuse, storage, and disposal of
pesticide containers. Containers (55 U.S. gallons or greater in
capacity) storing oil prior to mixing it with a pesticide, or
containers used to store pesticides that contain oil (after mixing
occurs), are considered bulk storage containers and are not exempt
under the SPCC rule. See Section V.B of the December 5, 2008 notice at
73 FR 74240 for more information about this amendment.
    Comments generally supported the exemption for pesticide
application equipment and related mix containers. Based on this and
review of all relevant facts, the Agency is making no change to this
provision.
3. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
    In Section V.B. of the preamble to the December 2008 amendments (73
FR 74241, December 5, 2008), EPA clarified that the definition of
mobile refueler, as promulgated in the December 2006 amendments to the
SPCC rule (71 FR 77266, December 26, 2006), includes a nurse tank,
which is a mobile/portable container used at farms to store and
transport fuel for transfers to or from farm equipment (such as
tractors and combines) to other bulk storage containers (such as
containers used to provide fuel to wellhead/relift pumps) at the farm.
A nurse tank is often mounted on a trailer for transport around the
farm, and thus its function is consistent with that of a mobile
refueler. A nurse tank, like other types of mobile refuelers, is exempt
from the sized secondary containment requirements at Sec. Sec.
112.8(c)(2) and 112.12(c)(2), but is still subject to the general
secondary containment requirements at Sec.  112.7(c).

    Comments generally supported the clarification regarding the
applicability of mobile refueler requirements to farm nurse tanks.
Based on this and review of all relevant facts, the Agency is making no
change to this clarification.
4. Residential Heating Oil Containers
    In the December 2008 amendments, EPA added a new paragraph (9)
under the general applicability section, Sec.  112.1(d), to exempt from
SPCC applicability containers that are used to store oil for the sole
purpose of heating single-family residences (including a residence at a
farm). EPA also modified Sec.  112.1(d)(2) so that the capacity of
single-family residential heating oil containers is not counted toward
facility aggregate oil storage capacity. Thus, the owner or operator is
not required to count any residential heating oil container (i.e.,
those at non-commercial buildings) as part of the facility's aggregate
storage capacity for the purpose of determining SPCC applicability, and
no SPCC requirements will apply to these exempt containers. The SPCC
requirements continue to apply, however, to oil containers used to heat
other non-residential buildings within a facility, because the
exemption covers only residential heating oil containers at single
family residences. See Section V.C of the December 5, 2008 notice at 73
FR 74243 for more information about this amendment.
    Comments generally supported the amendments to the exemption for
residential heating oil containers. The Agency did not intend for the
presence of heating oil containers at a single-family residence to, by
itself, trigger SPCC applicability. Based on this and review of all
relevant facts, the Agency is making no change to this provision.
5. Definition of Facility
    In the December 2008 amendments, EPA amended the definition of
``facility,'' as found in Sec.  112.2. (EPA defined both ``facility''
and ``production facility'' at Sec.  112.2 in the July 2002 amendments
to the SPCC rule (67 FR 47042, July 17, 2002).) EPA modified the
definition of ``facility'' in three ways: (1) To clarify that this
definition alone governs the applicability of 40 CFR part 112; (2) to
clarify that containers can be aggregated or disaggregated (i.e.,
counted separately), based on various factors in defining the
``facility'' (in other words, the owner or operator has the discretion
to identify which contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines make up
the facility); and (3) to add the qualifier ``oil'' before the term
``waste treatment.''
    EPA maintains that under this provision, the owner or operator
defines the boundaries of his facility, except as noted below. A
facility may or may not be subject to the SPCC rule depending on how
the facility owner or operator aggregates buildings, structures or
equipment and associated storage or type of activity. EPA recognizes
that this provision clarifies that a facility owner/operator may
determine that he is no longer subject to the SPCC requirements.
However, an owner or operator may not characterize a facility so as to
simply avoid applicability of the rule (for example, defining separate
facilities around oil storage containers that are located side-by-side
or within close proximity, and are used for the same purpose). See
Section V.D of the December 5, 2008 notice at 73 FR 74244 for more
information about this amendment.
    Comments generally supported the amendments to the definition of
``facility.'' Based on this and review of all relevant facts, the
Agency is making no change to this provision.
6. Facility Diagram
    In the December 2008 amendments, EPA revised the requirement that
the facility diagram include the location and contents of each
container to provide additional flexibility. EPA amended Sec.
112.7(a)(3) to clarify that the facility diagram must include all fixed
containers (that is, those containers that are not mobile or portable).
For any mobile or portable containers (such as drums or totes), a
facility owner or operator must mark the storage area on the facility
diagram for these containers. For the purposes of this provision,
``storage area'' means the location of their out-of-service containers
or designated storage area, primary storage area, or areas where mobile
or portable containers are most frequently located. The facility owner
or operator may mark the number of containers, contents and capacity of
each container either on the facility diagram or in a separate
description in the SPCC Plan. If the total number of mobile or portable
containers changes, the owner or operator need only include an estimate
in the Plan of the number of mobile or portable containers, the
anticipated contents, and capacities of the mobile or portable
containers maintained at the facility in the Plan.
    EPA also required that certain intra-facility piping (i.e.,
gathering lines) exempted from the SPCC requirements in the December
2008 action be identified on the facility diagram and marked as
``exempt.'' This will help facility and EPA personnel define the
jurisdictional boundaries at the facility and provide emergency
response personnel with information that can be used to identify
hazards during a spill response activity. However, EPA has not required
that all containers exempted from the rule be marked on the facility
diagram because in many cases, it would be impracticable. For example,
the mobility of motive power containers and mobile/portable containers
with a capacity of less than 55 U.S. gallons makes them difficult to
accurately represent on a facility diagram. See Section V.E of the
December 5, 2008 notice at 73 FR 74246 for more information about this
amendment.
    Comments generally supported the amendments to the facility diagram
provision. One commenter claimed that his facility diagrams identify
underground storage tanks, but do not label them as exempt from the
SPCC requirements. The comment argued that marking them as ``exempt''
would be an unnecessary expense. The requirement to identify exempt
USTs was finalized in July 2002 (67 FR 47042, July 17, 2002) and so
antedates the December 2008 amendments; thus the comment is outside the
scope of this rulemaking. However, in response, we would note that the
facility diagram can be supplemented with a table or log that indicates
which USTs are exempt from the SPCC requirements. Based on this and
review of all relevant facts, the Agency is making no change to this
provision.
7. Loading/Unloading Racks
    In the December 2008 amendments, EPA finalized a definition for the
term ``loading/unloading rack,'' which governs whether a facility's oil
transfer equipment and areas are subject to Sec.  112.7(h). Under this
provision, the requirements described at Sec.  112.7(h) only apply to
oil transfer areas of a regulated facility where a loading/unloading
rack, as defined in Sec.  112.2, is located. EPA modified the
definition to provide more clarity, and to indicate that a loading/
unloading arm is an essential component of a loading/unloading rack.
Other components that may be found at a loading or unloading rack are
described in the definition. Equipment present at a loading/unloading
area where a pipe stand connects to a tank car or tank truck via a
flexible hose, which is not equipped with a loading or unloading arm,
is not considered a loading/unloading rack as defined by the December
2008 amendments.

    EPA also changed all references from loading/unloading ``area'' to
loading/unloading ``rack,'' including modifications to the language in
Sec.  112.7(h)(1), and corrected the word ``break'' to ``brake'' in
Sec.  112.7(h)(2). Finally, EPA clarified that Sec.  112.7(h) applies
to a loading/unloading rack associated with a container that is
exempted from the rule, such as underground storage tanks (USTs) that
are subject to all of the technical requirements of 40 CFR part 280 or
a State program approved under part 281. Additionally, EPA clarified
that transfer areas (equipped with dispensers or other transfer
equipment) that are associated with exempted USTs, at an otherwise
regulated SPCC facility, are subject to the requirements of Sec.
112.7(c). See Section V.F of the December 5, 2008 notice at 73 FR 74248
for more information about this amendment.
    EPA agrees with the comment that EPA's definition of ``loading/
unloading rack'' does not apply to a flexible hose used to load and/or
unload oil from a tanker truck or railcar unless the flexible hose is
connected to a loading/unloading arm. The Agency does not intend this
definition to include areas where loading or unloading is achieved
using only flexible hoses. However, the presence of flexible hoses on
oil transfer equipment does not always indicate that the equipment is
exempt from the definition of loading/unloading rack because some top
and bottom loading/unloading racks consist of a combination of steel
loading arms connected by flexible hoses.
    Comments generally supported the ``loading/unloading rack''
definition and amendments to the requirements for a ``loading/unloading
rack.'' Based on this and review of all relevant facts, the Agency is
making no change to these provisions.
 8. General Secondary Containment
    In the December 2008 amendments, EPA amended the general secondary
containment requirement at Sec.  112.7(c) in three ways:
     By adding text regarding the method, design and capacity
of secondary containment-- to make it clear that the scope of the
general secondary containment requirements takes into consideration the
typical failure mode, and most likely quantity of oil that would be
discharged, consistent with EPA guidance (SPCC Guidance for Regional
Inspectors);
     By specifically referencing both active and passive
measures of secondary containment to make it clear that general
containment requirements allows for the use of both active and passive
secondary containment measures to prevent a discharge to navigable
waters or adjoining shorelines. Active containment measures are those
that require deployment or other specific action by an operator. These
measures may be deployed either before an activity involving the
handling of oil starts, or in reaction to a discharge, as long as the
active measure is designed to prevent an oil discharge from reaching
navigable waters or adjoining shorelines. Passive measures are
permanent installations and do not require deployment or action by the
owner or operator. The design and capacity flexibility described in
paragraph Sec.  112.7(c) is specifically for equipment and containers
subject to this paragraph and not for other secondary containment
provisions of this rule; and.
     By including the following additional examples of
prevention systems for onshore facilities: drip pans, sumps, and
collection systems. Drip pans are typically used to isolate and contain
small drips or leaks until the source of the leak is repaired. They are
commonly used with product dispensing containers (such as drums), when
uncoupling hoses after bulk transfer operations, and for pumps, valves,
and fittings. Sumps and collection systems generally involve a
permanent pit or reservoir connected to troughs/trenches that collect
oil. By expanding the list of examples of secondary containment
methods/prevention systems found in Sec.  112.7(c)(1), EPA intended to
increase the clarity and better represent current prevention practices.
EPA emphasizes that the list of containment methods/prevention systems
are examples only; other containment methods may be used, consistent
with good engineering practice. See Section V.H of the December 5, 2008
notice at 73 FR 74261 for more information about this amendment.
    As EPA discussed in the December 5, 2008 amendments, the Plan
preparer should include enough detail in the SPCC Plan to describe the
efficacy of the measures used to comply with the general secondary
containment requirements (see the SPCC Guidance for Regional
Inspectors, Chapter 4). While EPA does not require that calculations be
kept in the Plan, it recommends the facility owner or operator maintain
them such that if questions arise during the inspection, the
calculations which serve as the basis for the capacity of the secondary
containment system will be readily available for review.
    Comments generally supported the amendments to the general
secondary containment requirements. Based on this and review of all
relevant facts, the Agency is making no change to these provisions.
9. General Secondary Containment for Non-Transportation-Related Tank
Trucks
    In the December 2008 amendments, EPA extended the exemption from
the sized secondary containment requirements provided to mobile
refuelers in the December 2006 amendments (71 FR 77266, December 26,
2006) to non-transportation-related tank trucks at a facility subject
to the SPCC rule. Other non-transportation-related tanker trucks may be
transferring non-fuel oils (i.e., transformer oils, lubrication oils,
or certain AFVOs) and operate similarly to mobile refuelers; therefore,
they may not be able to comply with the sized secondary containment
requirements. Specifically, EPA amended Sec. Sec.  112.6(a)(3)(ii),
112.8(c)(2), 112.8(c)(11), 112.12(c)(2), and 112.12(c)(11) to include
the phrase ``except mobile refuelers and other non-transportation-
related tank trucks.'' Such non-transportation-related tank trucks
include those used to store and transport fuel, crude oil, condensate,
non-petroleum, or other oils for transfer to or from bulk storage
containers; for example, a truck used to refill oil-filled equipment at
an electrical substation or a pump truck at an oil production facility.
Under this approach, the general secondary containment requirements at
Sec.  112.7(c) still apply. See Section V.I of the December 5, 2008
notice at 73 FR 74262 for more information about this amendment.
    EPA agrees with comments supporting the exemption from the sized
secondary containment requirements for non-transportation-related tank
trucks at a facility subject to the SPCC rule. One comment noted that
the exemption from sized secondary containment should be rescinded,
given the use of truck and skid mounted tanks as storage containers at
temporary sites and the high risks associated with these tanks. EPA
disagrees with the comment. As stated in the preamble to the December
5, 2008 amendments, the Agency concluded that it is generally not
practicable to provide sized secondary containment for non-
transportation-related tank trucks because they are moving from
location to location within a facility. A non-transportation-related
tank truck that only operates in a single or fixed location within the
facility (i.e., it does not move within the facility for

purposes of transferring oil) is not eligible for this provision and
would still be subject to the sized secondary containment requirement.
Based on this and review of all relevant facts, the Agency is making no
change to this provision.
10. Security
    In the December 2008 amendments, EPA amended the facility security
requirements at Sec.  112.7(g) to be performance-based and allow an
owner or operator of a facility to tailor its security measures to the
facility's specific characteristics and location. This provision
extended the streamlined security requirements that EPA provided to
qualified facilities in the December 2006 SPCC rule amendments (71 FR
77266, December 26, 2006) to all facilities subject to the security
requirements.
    Specifically, EPA modified the security requirements at Sec.
112.7(g) to allow an owner or operator to design the security
arrangements at the facility to address the specific circumstances that
apply. This provision allows an owner or operator to describe in his
SPCC Plan how he will:
     Secure and control access to all oil handling, processing
and storage areas;
     Secure master flow and drain valves;
     Prevent unauthorized access to starter controls on oil
pumps;
     Secure out-of-service and loading/unloading connections of
oil pipelines; and
     Address the appropriateness of security lighting to both
prevent acts of vandalism and assist in the discovery of oil
discharges.
    A facility owner or operator is required to document in the SPCC
Plan how these security measures are implemented. These requirements
replace the more prescriptive fencing and other requirements,
previously found in Sec.  112.7(g)(1) through (5). Because the revised
requirements at Sec.  112.7(g) apply to all facilities (excluding oil
production facilities), EPA removed the security requirements
previously found at Sec.  112.6(c)(3) for qualified facilities; the
provision would be redundant. See Section V.J of the December 5, 2008
notice at 73 FR 74263 for more information about this amendment.
    Comments generally supported the amendments to the provision for
security requirements. Based on this and review of all relevant facts,
the Agency is making no change to this provision.
11. Integrity Testing
    In the December 2008 amendments, EPA amended the requirements at
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) to provide flexibility in
complying with the bulk storage container integrity testing
requirements. Specifically, EPA modified the provision to allow an
owner or operator to consult and rely on industry standards to
determine the appropriate qualifications for tank inspectors/testing
personnel and the type and frequency of integrity testing required for
a particular container size and configuration. Thus, EPA extended the
streamlined bulk storage container integrity testing requirement that
EPA provided to qualified facilities in the December 2006 SPCC rule
amendments (71 FR 77266, December 26, 2006) to all facilities subject
to the integrity testing provision.
    Specifically, EPA replaced the previous regulatory requirements at
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) with the requirement for a
facility owner or operator to:
     Test/inspect each aboveground container for integrity on a
regular schedule and whenever material repairs are made.
     Determine, in accordance with industry standards, the
appropriate qualifications of personnel performing tests and
inspections and the frequency and type of testing and inspections,
which take into account container size, configuration, and design.
    These revised provisions allow, for example, an owner or operator
to adopt visual inspections for certain types of containers, as
outlined in industry standards, to satisfy the integrity testing
requirements without the need for environmental equivalence
determinations certified by a PE. However, EPA notes that certain
containers may not fall within the scope of an industry standard or may
not have an applicable industry standard; in this case, the owner or
operator of the facility may develop an environmentally equivalent
inspection and testing program in accordance with Sec.  112.7(a)(2) to
comply with the integrity testing requirements described in Sec. Sec.
112.8(c)(6) and 112.12(c)(6) (for more information, see Chapter 7 of
the SPCC Guidance for Regional Inspectors). In the case of a Tier II
qualified facility, the environmentally equivalent integrity testing
program will require PE certification. See Sec.  112.6(b)(3)(i) and
112.6(b)(4) for more information on PE certification of environmental
equivalence for Tier II qualified facilities.
    An owner or operator is still required to keep comparison records
(records of inspections and tests kept under usual and customary
business practices will suffice) and to inspect the container's
supports and foundations. The owner or operator must also conduct
frequent inspection of the outside of the container for signs of
deterioration, discharges, or accumulation of oil inside diked areas.
Because the revised requirements at Sec. Sec.  112.8(c)(6) and
112.12(c)(6) apply to all facilities (excluding oil production
facilities), EPA removed the integrity testing requirements previously
found at Sec.  112.6(c)(4) for qualified facilities. See Section V.K of
the December 5, 2008 notice at 73 FR 74264 for more information about
this amendment.
    EPA agrees with the comments supporting the provision for integrity
testing requirements. However, several comments generally opposed these
amendments, and one comment questioned the need for more flexibility
with regard to the integrity testing requirements. EPA recognizes that
certain containers do not have applicable industry standards and notes
that the rule already provides flexibility to integrity testing in that
the owner or operator can rely on a PE to provide an environmentally
equivalent method of integrity testing in Sec.  112.7(a)(2).
Nonetheless, the December 2008 amendments address broader concerns with
the integrity testing requirements by revising the rule text under
Sec. Sec.  112.8(c)(6) and 112.12(c)(6). No new or compelling
information or data was provided by comments that supported changing
EPA's position. Based on this and review of all relevant facts, the
Agency is making no change to this provision.
12. Integrity Testing Requirements for Animal Fats and Vegetable Oils
    In the December 2008 amendments, EPA differentiated the integrity
testing requirements at Sec.  112.12(c)(6) for an owner or operator of
a facility that handles certain types of AFVOs. Specifically, EPA
provided the PE or an owner or operator self-certifying an SPCC Plan
with the flexibility to use a visual inspection program for integrity
testing for containers that store AFVOs and that meet certain criteria
identified in Sec.  112.12(c)(6)(ii). This flexibility applies to those
bulk storage containers that are subject to the applicable sections of
the Food and Drug Administration (FDA) regulation 21 CFR part 110,
Current Good Manufacturing Practice in Manufacturing, Packing or
Holding Human Food, as well as meet the following additional criteria:
(1) The

containers are elevated; (2) the containers are made from austenitic
stainless steel; (3) the containers have no external insulation; and
(4) the containers are shop-built. That is, an owner or operator with
containers meeting these criteria can use visual inspection of these
containers equivalent to industry standards, in lieu of the revised
integrity testing requirements found at Sec.  112.12(c)(6)(i), without
having to document the reasons for using an environmentally equivalent
measure in accordance with Sec.  112.7(a)(2). The owner or operator is
required to document the procedures for inspections and testing in the
SPCC Plan, including those for AFVO bulk storage containers that are
eligible for the differentiated requirements described in this
provision.
    EPA does not require that an owner or operator use this alternative
compliance option. This alternative provides additional flexibility in
meeting the provisions set forth in Sec.  112.12(c)(6) to address
stakeholder concerns. EPA recognizes that certain types of containers
do not have applicable industry standards. The December 2008 amendments
revised the SPCC rule to provide an environmentally equivalent approach
to comply with the integrity testing requirements for AFVO containers
or have a PE provide an environmentally equivalent method of integrity
testing in accordance with Sec.  112.7(a)(2). See Section V.K of the
December 5, 2008 notice at 73 FR 74264 for more information about this
amendment.
    EPA agrees with comments supporting the differentiated integrity
testing requirements for an owner or operator of a facility that
handles certain types of AFVOs. One comment requested greater
flexibility in determining the appropriate integrity testing measures
for bulk AFVO storage containers, including an extension of the
inspection frequency for tanks storing AFVO. The owner or operator can
identify the appropriate integrity testing measures for bulk AFVO
storage containers following either Sec.  112.12(c)(6)(i) or Sec.
112.12(c)(6)(ii). Additional flexibility may be achieved when a PE
provides an environmentally equivalent method of integrity testing in
accordance with Sec.  112.7(a)(2). The SPCC rule requires that
inspections of AFVO bulk storage containers be conducted on a regular
schedule, but does not otherwise specify an inspection frequency for
these containers. The owner or operator can identify the appropriate
inspection frequency for the AFVO containers and document the
inspection frequency in the SPCC Plan. No new or compelling information
or data was provided by comments that would cause the Agency to change
its position. Thus, based on this and review of all relevant facts, the
Agency is making no change to this provision.
13. Oil Production Facilities
    Since its original promulgation in 1973, the SPCC rule has included
differentiated requirements for oil production facilities (Sec.
112.9), as compared to other types of facilities (Sec. Sec.  112.8,
112.10, 112.11, and 112.12). Based on issues presented by the regulated
community, in the December 2008 amendments EPA adopted certain
revisions that further streamline, tailor or clarify the SPCC
requirements for oil production facilities (see Section V.M of the
December 5, 2008 notice at 73 FR 74270). EPA has decided not to modify
the following provisions: amended definition of ``production
facility''; clarification that drilling and workover activities are not
subject to the provisions at Sec.  112.9; exemption from the SPCC
requirements for certain intra-facility gathering lines subject to the
DOT pipeline regulations in 49 CFR parts 192 or 195; specific
requirements for a flowline/intra-facility gathering line maintenance
program and an alternative compliance option of contingency planning
for flowlines and intra-facility gathering lines at oil production
facilities in lieu of secondary containment requirements; an
alternative compliance option for flow-through process vessels at oil
production facilities that requires general secondary containment and
additional oil spill prevention measures in lieu of the sized secondary
containment requirements; definition of ``produced water container''
and alternative compliance measures for these containers which requires
general secondary containment, a process or procedure certified by a PE
designed to remove free-phase oil on the surface of the produced water
container and compliance with additional oil spill prevention measures
in lieu of sized secondary containment requirements; and clarification
of the definition of ``permanently closed'' as it applies to an oil
production facility.
a. Definition of Production Facility
    Consistent with the revisions to the definition of ``facility'' (as
described in Section V.D of the December 2008 amendments (73 FR
74236)), EPA also modified the definition of ``production facility.'' A
``production facility'' is a type of ``facility'' as defined in Sec.
112.2. With the December 2008 amendments, EPA added a sentence at the
end of the definition to clarify that while only the definition of
``facility'' governs the overall applicability of 40 CFR part 112, the
definition of ``production facility'' is used to determine which
sections of the rule may apply at a particular facility. (The sections
for administrative and general rule requirements continue to apply at
all facilities under 40 CFR part 112.) This change to the definition of
production facility addresses concerns raised during litigation
challenging the July 2002 rule amendments and discussed in the May 25,
2004 Federal Register notice (69 FR 29728). EPA also modified the
phrase ``and located in a single geographical oil or gas field operated
by a single operator'' to clarify that a production facility ``is
located in an oil or gas field.'' This is consistent with the revisions
to the definition of ``facility'' that emphasize the flexibility in how
a facility owner or operator can determine the boundaries of a
facility. See Section V.M.1 of the December 5, 2008 notice at 73 FR
74270 for more information about this amendment.
    EPA agrees with comments supporting the revisions to the definition
of ``production facility.'' One comment, however, suggested that the
Agency refer specifically to petroleum oil in the definition, to
clarify that the term does not apply to vegetable oil production
facilities. EPA disagrees with the comment; the addition of the term
``petroleum'' is unnecessary because the definition itself makes clear
that the type of facilities addressed under ``production facility'' are
those involved with petroleum crude oil production and not any other
type of oil production, such as AFVO production. EPA's intent has
always been that the definition of production facility addresses
petroleum crude oil production, extraction, recovery, lifting,
stabilization, separation or treatment and associated storage or
measurement. For example, the definition includes terms associated with
petroleum crude oil production, such as gathering lines and flowlines,
which are associated with upstream petroleum crude oil/gas production,
not AFVO production or processing facilities. Furthermore, the
definition specifies that certain structures, piping, or equipment be
located in an oil or gas field. The term ``oil or gas field'' is used
exclusively in upstream crude oil and gas production, not in AFVO
production; therefore the definition of production facility does not
apply to AFVO production facilities.
    Based on this and review of all relevant facts, the Agency is
making no change to this provision.

b. Modifications to Sec.  112.9 for Drilling and Workover Facilities
    To clarify that drilling and workover activities are not subject to
the provisions at Sec.  112.9, in the December 2008 amendments, EPA
revised the title of Sec.  112.9 to read ``Spill Prevention, Control,
and Countermeasure Plan requirements for onshore oil production
facilities (excluding drilling and workover facilities).'' EPA also
amended the introductory sentence of the section accordingly. See
Section V.M.2 of the December 5, 2008 notice at 73 FR 74272 for more
information about this amendment.
    Comments generally supported the amendments to Sec.  112.9 for
drilling and workover facilities. Based on this and review of all
relevant facts, the Agency is making no change to this provision.
c. Exemption for Certain Intra-Facility Gathering Lines
    In the December 2008 amendments, EPA provided an exemption for
intra-facility gathering lines subject to DOT requirements at 49 CFR
parts 192 (Transportation of Natural and Other Gas by Pipeline) or 195
(Transportation of Hazardous Liquids by Pipeline). EPA recognizes that
the DOT requirements for pipelines may be similar in scope to the SPCC
regulations, so that compliance with certain DOT requirements is
considered environmentally equivalent to certain SPCC requirements. For
example, DOT has the statutory authority over onshore gas or hazardous
liquid gathering lines in a non-rural area, as well as ``regulated
rural gathering lines'' (including certain gathering lines in or within
one-quarter mile of environmentally sensitive rural areas, defined as
``unusually sensitive areas''), and certain low-stress pipelines
transporting hazardous liquids. While many gathering lines are under
DOT's statutory authority, only a subset of them is subject to the DOT
regulatory requirements.
    EPA recognizes that gathering lines can be outside the Agency's
jurisdiction because they ``transport'' oil outside of an oil
production facility. EPA has jurisdiction over non-transportation-
related facilities, which includes pipelines used to move oil within a
facility. Any inter-facility pipeline, including a gathering line, that
transports oil between facilities or from a facility to a vessel, or
from a facility to a transportation-related pipeline facility, such as
a transmission line, or a pipeline breakout tank, when used for this
purpose, is considered transportation-related and is therefore outside
EPA's jurisdiction and not subject to the SPCC rule. However, the
definition of ``facility,'' as it applies to the SPCC rule is flexible.
Depending upon how an owner/operator defines his facility under the
SPCC rule, an oil production facility may also include intra-facility
gathering lines.
    While gathering lines within the SPCC facility boundaries are
intra-facility piping, EPA maintained the term intra-facility gathering
lines because it is a term that is well recognized within the
production sector. For those intra-facility gathering lines that are
regulated by DOT under 49 CFR part 192 or 195, EPA exempted them from
the SPCC requirements. In other words, the exemption is for intra-
facility gathering lines present at a facility where the piping
otherwise is subject to both EPA and DOT jurisdiction and regulations.
EPA's focus with the SPCC rule is the regulation of oil storage and
handling at facilities engaged in activities related to drilling,
producing, gathering, processing, refining, storing, transferring,
distributing and using oil, while DOT's focus is to regulate
transportation-related pipelines. Although EPA has jurisdiction over
these lines, EPA has concluded that it is appropriate to defer to DOT's
regulations, when applicable to intra-facility gathering lines, in lieu
of EPA's requirements. At the same time, the Regional Administrator has
the option under Sec.  112.1(f) to require owners and operators of
facilities, including those with exempt intra-facility gathering lines,
to prepare and implement an SPCC Plan or any applicable part, if a
determination is made that it is necessary to prevent a discharge of
oil into navigable waters or adjoining shorelines.
    Only intra-facility gathering lines that are subject to these DOT
regulations are eligible for the exemption. Intra-facility gathering
lines located at a facility that are not subject to the regulatory
requirements at 49 CFR parts 192 or 195 remain subject to the
requirements at 40 CFR part 112. Other non-transportation-related
equipment and piping at an oil production facility (such as flowlines),
remain subject to the SPCC requirements. In addition, this exemption
requires that owners or operators of a facility identify and mark as
``exempt'' on the facility diagram the location of exempt piping. This
requirement will assist facility and EPA personnel in defining the
boundaries of EPA and DOT jurisdiction and provide response personnel
with information used to identify potential hazards during a spill
response activity. See Section V.M.4.a of the December 5, 2008 notice
at 73 FR 74273 for more information about this amendment.
    Comments generally supported the exemption for intra-facility
gathering lines subject to the regulatory requirements at 49 CFR parts
192 or 195. Based on this and review of all relevant facts, the Agency
is making no change to this provision.
d. Flowlines and Intra-Facility Gathering Lines
    EPA is making no changes to the following provisions related to
flowlines and intra-facility gathering lines.
(i) Compliance Alternative in Lieu of Secondary Containment for
Flowlines and Intra-Facility Gathering Lines
    EPA has determined that secondary containment is, in most cases,
impracticable for flowlines and intra-facility gathering lines.
Therefore, in the December 2008 amendments, the Agency revised Sec.
112.7(c) to provide an optional compliance alternative consisting of
contingency planning and a written commitment of manpower, equipment,
and materials in lieu of the general secondary containment requirements
for flowlines and intra-facility gathering lines that are subject to
the SPCC regulation. The Agency tailored the requirements in an effort
to provide additional compliance options and enhance environmental
protection. See Section V.M.4.b of the December 5, 2008 notice at 73 FR
74274 for more information about this amendment.
    EPA agrees with comments supporting the provision of an alternative
option to the secondary containment requirements for flowlines and
intra-facility gathering lines at an oil production facility. A few
comments specifically opposed any reduction in secondary containment
requirements, but no new or compelling information or data was provided
by comments that supported revising the requirements. While EPA
understands that flowlines and intra-facility gathering lines are
typically a source of discharges, secondary containment is often
impracticable. In the December 2008 amendments, EPA provided an
alternative compliance option to secondary containment which combines
the development of a contingency plan and a written commitment of
manpower, equipment, and materials to respond to discharges from
flowlines and intra-facility gathering lines. In addition, EPA has also
established requirements to add specificity to the flowline and intra-
facility gathering line maintenance program. Finally, if this method of
spill prevention does not accomplish the goal of protecting

navigable waters or adjoining shorelines, under Sec.  112.1(f) the RA
may request that the facility amend the SPCC Plan and provide secondary
containment for this piping.
    Based on this and review of all relevant facts, the Agency is
making no change to this provision.
(ii) Contingency Plan for Flowlines and Intra-Facility Gathering Lines
    In the December 2008 amendments, EPA revised Sec. Sec.  112.7(c)
and 112.9(d)(3) to provide a compliance alternative to the general
secondary containment requirements under Sec.  112.7(c) for flowlines
and intra-facility gathering lines at an oil production facility.
Specifically, in lieu of general secondary containment, a facility
owner or operator may opt to develop and implement an oil spill
contingency plan in accordance with 40 CFR part 109 (Criteria for
State, Local and Regional Oil Removal Contingency Plans) and prepare a
written commitment of manpower, equipment, and materials required to
expeditiously control and remove any quantity of oil discharged that
may be harmful, without having to make an impracticability
determination for each piece of piping. The Agency amended this
provision in an effort to provide additional compliance options and
enhance environmental protection. The use of a contingency plan does
not relieve the owner or operator of liability associated with an oil
discharge to navigable waters or adjoining shorelines that violates the
provisions of Section 311(b)(3) of the CWA, 33 U.S.C. 1321(b)(3). EPA
also amended Sec.  112.7(a) to make it clear that the contingency plan
provisions under Sec.  112.9(d)(3) are not subject to the environmental
equivalence provision. See Section V.M.4.c of the December 5, 2008
notice at 73 FR 74275 for more information about this amendment.
    EPA agrees with comments supporting the provision to require an oil
spill contingency plan in lieu of general secondary containment.
However, one comment suggested that a contingency plan should not be
used in lieu of secondary containment, because the purpose of the SPCC
rule is to prevent spills, not to clean them up after they occur. While
EPA understands that although these lines can be the source of
discharges, the Agency also recognizes that secondary containment is
often impracticable. EPA has provided an alternative compliance option
to secondary containment which combines the development of a
contingency plan and a written commitment of manpower, equipment, and
materials to respond to discharges. In addition, EPA has also
established requirements to add specificity to the flowline and intra-
facility gathering line maintenance program. These additional measures
are intended to enhance the primary integrity of the flowlines and
intra-facility gathering lines to prevent the discharges of oil in the
first place, and thus, EPA is not solely relying on a contingency plan.
Finally, if this method of spill prevention does not accomplish the
goal of protecting navigable waters or adjoining shorelines, then under
Sec.  112.1(f), the RA has the authority to request that the facility
amend the SPCC Plan and provide secondary containment for this piping.
    Another comment suggested that the burden for this alternative
option is excessive. EPA disagrees. First, as already noted, this
alternative provision for flowlines and intra-facility gathering lines
is optional; some facilities may choose to provide secondary
containment for these lines. Flowlines and intra-facility gathering
lines can be a source of discharges and when secondary containment is
not provided then it is appropriate for the facility to have a
contingency plan and a written commitment of manpower, equipment, and
materials in place to respond to these discharges. Additionally, by
removing the need to determine impracticability, the Agency has reduced
the burden to allow for contingency planning for these flowlines and
intra-facility gathering lines. Therefore, EPA has concluded that the
requirements are not excessive. Furthermore, by removing the
requirement that a PE make the determination of impracticability (Sec.
112.7(d)), the cost of preparing a contingency plan should decrease.
    Another comment suggested that in lieu of the secondary containment
requirements for flowlines and intra-facility gathering lines, EPA
should require annual physical inspections of the lines and
installation of isolation valves on the ends of lines. EPA agrees that
some form of enhanced inspection program is appropriate to assure the
primary integrity of the flowlines and intra-facility gathering lines
and to implement a contingency plan. However, EPA has concluded that
inspection frequency is a site-specific determination and setting a
prescriptive (``one-size fits all'') timeframe is inappropriate.
Although the Agency agrees that the installation of isolation valves
may be appropriate in some cases, it did not include this as a
requirement because it may be impracticable for some oil production
facilities. However, an owner or operator may choose to install
isolation valves as an environmentally equivalent measure to comply
with the flowline/intra-facility gathering line maintenance
requirements in accordance with Sec.  112.7(a)(2).
    No new or compelling information or data was provided by comments
that support modification of the provision. Based on this and review of
all relevant facts, the Agency is making no change to this provision.
(iii) Requirements for a Flowline and Intra-Facility Gathering Line
Maintenance Program
    In the December 2008 amendments, EPA revised the requirement for an
owner or operator to prepare and implement a written flowline and
intra-facility gathering line maintenance program under Sec.
112.9(d)(4) to add specificity to the existing provision. This
provision specifies that the requirements apply to non-transportation-
related intra-facility gathering lines, as well as to flowlines at an
oil production facility. Intra-facility gathering lines pose the same
potential for discharge as flowlines. EPA never intended to regulate
the two types of piping differently. In response to industry concerns,
EPA has established requirements to add specificity to the existing
flowline/intra-facility gathering line maintenance program provision,
because there are no industry standards for maintenance of this
equipment. The Agency believes that an effective flowline maintenance
program is necessary to detect a discharge in a timely manner so that
the oil discharge response operations described in the contingency plan
may be implemented effectively. Additionally, eliminating the
requirement for secondary containment necessitates more prescriptive
requirements for discharge prevention to ensure the integrity of the
primary containment of the pipe itself. Finally, EPA believes that it
is appropriate to establish a minimum set of requirements for a
flowline and intra-facility gathering line maintenance program in order
to facilitate consistent compliance. Under the amended provisions, a
maintenance program must address procedures to:
     Ensure that such flowlines and intra-facility gathering
lines and associated valves and equipment are compatible with the type
of production fluids, their potential corrosivity, volume, and
pressure, and other conditions expected in the operational environment.
     Visually inspect and/or test flowlines and intra-facility
gathering lines and associated appurtenances on a

periodic and regular schedule for leaks, oil discharges, corrosion, or
other conditions that could lead to a discharge as described in Sec.
112.1(b). The frequency and type of testing must allow for the
implementation of a contingency plan, as described under part 109 of
this chapter, if there is no secondary containment.
     Take corrective action or make repairs to any flowlines
and intra-facility gathering lines and associated appurtenances as
indicated by regularly scheduled visual inspections, tests, or evidence
of a discharge.
     Promptly remove or initiate actions to stabilize and
remediate any accumulations of oil discharges associated with
flowlines, intra-facility gathering lines, and associated
appurtenances.
    The Agency concludes that if the requirement for general secondary
containment for these lines is eliminated, then some minimal
prescriptive requirements for discharge prevention to ensure the
integrity of the primary containment of the pipe itself are
appropriate. However, the facility owner or operator may deviate from
the flowline and intra-facility gathering line maintenance program
requirements if an environmentally equivalent alternative measure is
implemented in accordance with Sec.  112.7(a)(2). EPA recognizes that
other Federal or State requirements may be environmentally equivalent
to certain SPCC requirements, including the flowline and intra-facility
gathering line maintenance program requirement. An environmental
equivalence determination is subject to review and certification by a
PE. An effective flowline and intra-facility gathering line maintenance
program includes timely detection of an oil discharge so that response
operations described in the contingency plan may be implemented
effectively. See Section V.M.4.d of the December 5, 2008 notice at 73
FR 74276 for more information about this amendment.
    A comment suggested that the amended requirements for a flowline
and intra-facility gathering line maintenance program are excessive.
The Agency disagrees. As noted previously, if the requirement for
general secondary containment is eliminated, then some minimal
requirements that add specificity to the flowline and intra-facility
gathering line maintenance program are appropriate, particularly since
there are no industry standards for the maintenance of flowlines and
intra-facility gathering lines. To the extent that an owner and
operator of a facility cannot comply with this provision, he can
deviate from these requirements if an environmentally equivalent
alternative is implemented in accordance with Sec.  112.7(a)(2). No new
or compelling information or data was provided in comments that would
cause the Agency to change its position. Based on this and review of
all relevant facts, the Agency is making no change to this provision.
e. Flow-Through Process Vessels
    EPA is making no changes to the following provisions related to
flow-through process vessels.
(i) Exemption From Sized Secondary Containment for Flow-Through Process
Vessels
    Flow-through process vessels, such as horizontal or vertical
separation vessels (for example, a heater-treater, free-water knockout,
gun-barrel, etc.) have the primary purpose of separating the oil from
other fractions (water and/or gas) and sending the separated fluid
streams to the appropriate container. In the December 2008 amendments,
EPA revised the requirements in Sec.  112.9(c)(2) to remove the
requirement to provide sized secondary containment for flow-through
process vessels at oil production facilities without making an
impracticability determination, and to allow the facility owner or
operator the option to comply with the alternate requirements in Sec.
112.9(c)(5) instead (see Section ii, below).
    EPA agrees with concerns regarding the impracticability of
providing sized secondary containment around certain flow-through
process vessels at production facilities. EPA also recognizes that
similar flow-through process equipment at non-production facilities are
not subject to the more stringent sized secondary containment and
inspection requirements for bulk storage containers; only the general
secondary containment requirements at Sec.  112.7(c) apply. However,
due to the unattended (and in some cases remote) nature of oil
production operations, EPA concluded that it was appropriate to require
additional measures in lieu of sized secondary containment for this
equipment. Thus, in the December 2008 amendments, EPA provided an
alternative compliance option to address these concerns.
    It is important to note that although the Agency provided an option
that allows the owner and operator to not provide sized secondary
containment for flow-through process vessels at oil production
facilities, the general secondary containment requirement of Sec.
112.7(c) still applies to these vessels. See Section V.M.5.a of the
December 5, 2008 notice at 73 FR 74277 for more information about this
amendment.
    EPA agrees with comments supporting the provision to exempt flow-
through process vessels from the sized secondary containment
requirement. However, two comments suggested that any exemption from
the secondary containment requirement for flow-through process vessels
would cause a greater risk for discharges of harmful quantities of oil
to reach navigable waters or adjoining shorelines. EPA agrees that some
form of secondary containment is required for these vessels. EPA also
agrees that sized secondary containment is generally preferable to
general secondary containment because these flow-through process
vessels operate at unattended facilities and often at remote locations.
However, there are instances where providing such sized secondary
containment is not always practicable. To address this concern, EPA
provided the owner or operator with a choice to comply with either the
sized secondary containment requirements, or the general secondary
containment requirements along with additional measures for inspection
and corrective action. These compliance options allow the owner or
operator to tailor the SPCC Plan to meet the facility's operational
needs while maintaining environmental protection.
    No new or compelling information or data was provided in comments
that supported modification of the provision. Based on this and review
of all relevant facts, the Agency is making no change to this
provision.
(ii) Additional Requirements in Lieu of Sized Secondary Containment for
Flow-Through Process Vessels
    Oil production facilities are generally unattended. EPA recognizes
that process equipment at other types of facilities is typically
attended during hours of operation and there is a greater potential to
immediately discover and correct a discharge. Therefore, in the
December 2008 amendments, EPA required additional measures for flow-
through process vessels at oil production facilities that do not have
sized secondary containment. EPA provided requirements in Sec.
112.9(c)(5) that include the following: Periodic inspection and/or
testing for leaks, corrosion, or other conditions that could lead to a
discharge as described in Sec.  112.1(b); corrective action or repairs
to flow-through process vessels and any associated components as
indicated by regularly scheduled visual inspections, tests, or evidence
of an oil discharge; and prompt removal or initiation of

actions to stabilize and remediate any accumulations of oil discharges
associated with flow-through process vessels. See Section V.M.5.b of
the December 5, 2008 notice at 73 FR 74278 for more information about
this amendment.
    Comments generally supported the additional requirements in lieu of
sized secondary containment for flow-through process vessels. One
comment, however, suggested that the risk of discharge from flow-
through process vessels is so low that there should be no additional
requirements. EPA disagrees with the comment because flow-through
process vessels contain oil and therefore pose a potential threat of a
discharge (e.g., failure of a dump valve). Additionally, this
alternative compliance option removes the sized secondary containment
specification for flow-through process vessels that are located at
unmanned facilities, which are often remotely located, and constantly
operating. Therefore, EPA has established alternative prevention
measures along with the general secondary containment requirement in
order to maintain environmental protection. However, the Agency
provided the owner or operator with a choice to comply with either the
sized secondary containment requirements, or the general secondary
containment requirements along with the additional measures for
inspection and corrective action. Based on this and review of all
relevant facts, the Agency is making no change to this provision.
(iii) Reportable Discharge From Flow-Through Process Vessels
    In the December 2008 amendments, EPA finalized a provision to
require that if an oil production facility owner or operator has a
discharge as described in Sec.  112.9(c)(5)(iv) from a flow-through
process vessel, then he must ensure that all flow-through process
vessels using general secondary containment comply with the sized
secondary containment requirements of Sec.  112.9(c)(2) and periodic
inspection requirements of paragraph (c)(3) within six months of the
discharge discovery. A discharge, as described in Sec.
112.9(c)(5)(iv), is either a single discharge of more than 1,000 U.S.
gallons of oil or two discharges within any twelve month period, each
of more than 42 U.S. gallons of oil. The amount of oil specified in
this criterion refers to the amount of the discharge that actually
reaches navigable waters or adjoining shorelines, not the total amount
of the discharge released from the container. Owners and operators do
not need to include the amount of oil discharges that are the result of
natural disasters, acts of war, or terrorism when evaluating this
criterion. See Section V.M.5.c of the December 5, 2008 notice at 73 FR
74279 for more information about this amendment.
    No comments specific to reportable discharges from flow-through
process vessels were received in the 2009 comment period. Based on this
and review of all relevant facts, the Agency is making no change to
this provision.
f. Alternative Compliance Measures for Produced Water Containers
    Produced water containers are typically located within a tank
battery at an oil production facility where they are used to store well
fluids that result after marketable crude oil is separated from the
fluids extracted from the reservoir and prior to disposal, subsequent
use (e.g., re-injection or beneficial reuse), or further treatment.
Under normal operating conditions, a layer of oil may be present on top
of the fluids in these produced water containers. The amount of oil by
volume observed in produced water containers varies, but based on EPA's
understanding, is generally estimated to range from less than one to up
to ten percent, and can be greater. These produced water containers are
typically at the end of the oil treatment process and often accumulate
emulsified oil not captured in the separation process.\4\
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    \4\ Considerations for the Regulation of Onshore Oil Exploration
and Production Facilities Under the Spill Prevention, Control, and
Countermeasure Regulation (40 CFR part 112)) found in the docket for
this rulemaking at EPA-HQ-OPA-2007-0584-0015; and Supplemental DOE
Information Relating to Oil and Gas Industry Relief from Some SPCC
Requirements, found in the docket for this rulemaking at EPA-HQ-OPA-
2007-0584-0175.
---------------------------------------------------------------------------

    In the December 5, 2008 SPCC rule amendments, EPA adopted two
alternatives for produced water containers at oil production
facilities. Under the first alternative, EPA exempted produced water
containers at oil production facilities from the requirements of the
SPCC rule if a PE certified, as part of the SPCC Plan, that the
contents of a produced water container, if completely discharged, would
not contain oil in amounts that may be harmful (as described in 40 CFR
part 110) based on the efficiency of the oil/water separation
technology used. Under this alternative, the capacity of the exempted
containers would not count towards the facility aggregate oil storage
capacity. EPA is removing this exemption. See the discussion in section
V.C.3 of this notice.
    For those produced water containers that were not eligible for the
exemption, the facility owner/operator could comply with the general
secondary containment requirements in lieu of sized secondary
containment and conduct visual inspections, maintenance and corrective
action, if a PE described in the SPCC Plan and certified that a
practice was established that was designed to remove the amount of
free-phase oil from the produced water container on a scheduled and
routine basis. These containers would count toward the aggregate oil
storage capacity. If the production facility had certain types of oil
discharges or failed to meet the requirements of this part of the rule,
the facility would no longer be eligible for the exemption or the
streamlined requirements. EPA also promulgated a definition of produced
water container to clarify which containers were eligible for these
rule provisions.
    In this action, EPA is not making any changes to the definition of
produced water container in Sec.  112.2 or the alternative compliance
measures for produced water containers in lieu of sized secondary
containment as finalized in the December 5, 2008 notice. The
alternative measures to sized secondary containment requirements and
inspections under Sec.  112.9(c)(2) and (c)(3) for produced water
containers include: compliance with general secondary containment
requirements; implementation of a procedure or process to remove free-
phase oil (e.g., skimming program) as certified by a PE; visual
inspection; corrective action or repairs to the container; and prompt
removal or remediation of oil discharges.
    EPA acknowledges comments that expressed general support for, as
well as opposition to, the alternatives for produced water containers
finalized in the December 2008 notice (73 FR 74236, December 5, 2008).
Good general secondary containment practices can be successfully
implemented in lieu of sized secondary containment, if such practices
are designed by a PE in consideration of site-specific factors and in
combination with additional oil spill prevention practices including
inspections, procedures to minimize the amount of free-phase oil in the
container, and procedures to remove/remediate discharged oil. The
Agency acknowledges that skimming operations at produced water
containers may operate similarly to separation operations at flow-
through process vessels when free phase oil is being removed or
recovered from them on a regular basis. Therefore, including the
additional compliance measures for produced water containers with
procedures to minimize the amount of

free-phase oil, including remediation and inspections, is appropriate
and consistent with alternative compliance options provided for other
bulk storage containers (i.e., flow-through process vessels) which
separate oil and water mixtures. As with flow-through process vessels
at oil production facilities, EPA remains concerned that these produced
water containers are typically located at unattended, often remote
facilities, and therefore has retained the additional provisions for
maintenance, inspection, and remediation to maintain environmental
protection. The Agency agrees with comments that expressed concern
regarding the threat of discharges from produced water containers. Oil
may be present not only in free phase, but also in other forms, such as
in a dissolved phase, emulsion or sludge at the bottom of the produced
water container. EPA is addressing these concerns by retaining the
additional spill prevention measures in addition to general secondary
containment for these containers.
    A comment noted that it is common practice to locate produced water
bulk storage containers with other bulk storage containers in the tank
battery surrounded by sized secondary containment. EPA agrees that some
oil production facilities already provide sized secondary containment
around their bulk storage containers, including around their produced
water containers. Engineered secondary containment measures, such as
dikes or berms, are particularly appropriate for oil production
facilities (including produced water containers) since these facilities
can be remotely located and are often unattended, and thus there may be
delays in detecting and mitigating an oil spill. In fact, the data
referenced in comments show that a number of spills from produced water
containers were specifically contained by a sized secondary containment
berm or other man-made structure which prevented the migration of the
fluids offsite and to waters. Therefore, the alternative measures for
produced water containers under Sec.  112.9(c)(6) are optional. An
owner or operator may choose to comply with the sized secondary
containment requirements in Sec.  112.9(c)(2) along with the inspection
requirements in Sec.  112.9(c)(3). However, because the alternative
removal procedure is essential for reducing the amount of free-phase
oil in the produced water container, if it is not implemented as
described in the Plan or no records are maintained, then the owner/
operator must comply with Sec.  112.9(c)(2) and (c)(3).
    Additionally, if the facility experiences a discharge of more than
1,000 U.S. gallons of oil in a single discharge as described in Sec.
112.1(b), or discharges more than 42 U.S. gallons of oil in each of two
discharges as described in Sec.  112.1(b), occurring within any twelve
month period (excluding discharges that are the result of natural
disasters, acts of war, or terrorism) from a produced water container,
then the facility owner or operator may no longer take advantage of
this alternative option and must comply with the sized secondary
containment requirements at Sec.  112.9(c)(2) and the inspection
requirements at Sec.  112.9(c)(3) within six months. Section
112.9(c)(6)(v) has been retained to provide this requirement. As stated
in the December 2008 amendments, a produced water container must
already comply with Sec.  112.9(c)(1) and Sec.  112.9(c)(4) and
therefore these requirements were not added to Sec.  112.9(c)(6)(v).
See Section V.M.7.b of the December 5, 2008 notice at 73 FR 74287 for
more information about this amendment.
    Based on this and review of all relevant facts, the Agency is
making no change to this provision or to the definition of produced
water container.
g. Clarification of the Definition of Permanently Closed Containers
    In the preamble to the December 2008 amendments, the Agency
addressed concerns expressed by the regulated community over the
requirements for permanently closing a container, as described in the
definition of ``permanently closed'' at Sec.  112.2. There, EPA
clarified that the permanent closure requirements under the SPCC rule
are separate and distinct from the closure requirements in regulations
promulgated under Subtitle C of the Resource Conservation and Recovery
Act (RCRA). Consequently, an oil production facility does not have to
undergo the expense of permanent closure under 40 CFR part 264 or 265
of RCRA, because the drilling fluids, produced waters, and other wastes
associated with the exploration, development, or production of crude
oil are not subject to those regulations. See Section V.M.8 of the
December 5, 2008 notice at 73 FR 74290 for the full text of this
preamble clarification.
    No comments were received in the 2009 comment period addressing the
clarifying language and therefore, EPA maintains its position on this
clarification.
14. Man-Made Structures
    In the preamble to the December 2008 amendments, EPA clarified
that, consistent with statements made in the preamble to a 1976
amendment to the SPCC rule (41 FR 34164, December 11, 1976), manmade
features, such as drainage control structures and dikes, cannot be used
to conclude that there is no reasonable expectation that a discharge
from the facility will reach navigable waters or adjoining shorelines.
That is, if there is a reasonable expectation that a discharge from the
facility would reach navigable waters or adjoining shorelines in the
absence of such containment or other structures, the facility is
subject to the SPCC requirements. However, EPA noted that it may be
appropriate for a facility owner or operator to consider man-made
structures (for example, dikes, equipment, buildings, basements or
other containment structures) to determine how to comply with the SPCC
rule. See Section V.N of the December 5, 2008 notice at 73 FR 74292 for
the full text of this preamble clarification.
    EPA agrees with the comment that generally supported the
clarifications on man-made structures. Based on this and review of all
relevant facts, the Agency is making no change to this clarification.
15. Wind Turbines
    In the preamble to the December 2008 amendments, EPA clarified that
wind turbines meet the definition of oil-filled operational equipment
adopted in the December 2006 SPCC rule amendments (71 FR 77266,
December 26, 2006). Thus, the alternative compliance option provided
for this type of equipment in Sec.  112.7(k) is available for wind
turbines, to the extent that the wind turbines meet the oil storage
capacity threshold in the rule. The amendments to the SPCC rule
promulgated in December 2006 allow owners and operators of facilities
with qualified oil-filled operational equipment the option of preparing
an oil spill contingency plan and a written commitment of manpower,
equipment, and materials to expeditiously control and remove any oil
discharged that may be harmful without having to make an individual
impracticability determination as required in Sec.  112.7(d). If an
owner or operator chooses this option, he is also required to establish
and document an inspection or monitoring program for this qualified
oil-filled operational equipment to detect equipment failure and/or a
discharge in lieu of providing secondary containment. See Section V.P
of the December 5, 2008 notice at 73 FR 74294 for the full text of this
preamble clarification.
    No comments were received in the 2009 comment period on the

clarification and therefore, EPA maintains its position.
16. Technical Corrections
    In the December 2008 amendments, EPA corrected the text of the
introductory paragraph of Sec.  112.3 to move the phrase ``in writing''
after ``must prepare'' and then insert the phrase ``and implement''
after the phrase ``in writing,'' in order to make it explicit that a
facility owner or operator must prepare and implement an SPCC Plan.
    EPA also amended the introductory paragraph of Sec.  112.12 to
delete the phrase ``(excluding a production facility).'' This amendment
corrected an inadvertent omission when EPA removed several sections in
Subpart C of 40 CFR part 112 that were inappropriate for AFVOs in the
December 2006 amendments to the SPCC rule (71 FR 77266, December 26,
2006).
    Finally, the Agency amended the regulation to include ``U.S.''
before gallons in several places, to indicate that the Agency means the
U.S. gallon unit of measure and not the Imperial unit of measure. See
Section V.Q of the December 5, 2008 notice at 73 FR 74294 for more
information about these technical corrections.
    Comments generally supported the technical corrections. Based on
this and review of all relevant facts, the Agency is making no change
to these provisions.

B. Technical Corrections to Provisions of the December 2008 Amendments

    EPA is correcting the text of several of the provisions promulgated
on December 5, 2008. These corrections further clarify or update the
provisions of the December 2008 amendments without making substantive
changes to the regulatory requirements.
1. Tier I Qualified Facilities and Appendix G Plan Template
    As required in the December 2008 amendments, a Tier I qualified
facility must meet all of the eligibility criteria for qualified
facilities promulgated by EPA in December 2006 (71 FR 77266, December
26, 2006), as well as not have any aboveground oil storage container
with a capacity greater than 5,000 U.S. gallons. EPA developed this
individual container capacity criterion in order to link any
streamlined requirements with a reduced potential for oil discharge.
The selection of the maximum individual aboveground container capacity
threshold of 5,000 U.S. gallons is consistent with the applicable
industry consensus standard that calls for varying levels of inspection
requirements based on container size and configuration.
    EPA designated qualified facilities that have an individual
aboveground oil storage container with a capacity greater than 5,000
U.S. gallons as Tier II qualified facilities. Although the organization
of the regulatory text in Sec.  112.6 was modified to accommodate the
tiered approach, the requirements for Tier II qualified facilities
remained the same as promulgated on December 26, 2006 (71 FR 77266).
    The December 2008 amendments eliminated and/or modified several
SPCC requirements for Tier I qualified facilities. For example, the
facility diagram requirements (Sec.  112.7(a)(3)) and certain
provisions that generally do not apply to facilities that store or
handle smaller volumes of oil, such as requirements for transfers at
loading racks (Sec.  112.7(h)) were removed. The list of applicable
rule provisions for Tier I qualified facilities is included in Sec.
112.6(a)(3).
    The Tier I self-certification requirement is similar in scope to
that required for an owner or operator of a Tier II qualified facility
who chooses to self-certify an SPCC Plan (as promulgated in December
2006, 71 FR 77266). Consistent with the current requirement for
qualified facilities, the owner or operator of a Tier I qualified
facility is also allowed to self-certify any technical amendments to
the Plan under Sec.  112.6(a)(2), and document this certification in
the Plan template (or some other equivalent Plan).
    The December 2008 amendments provided the owner or operator of a
Tier I qualified facility with the option to complete a self-certified
SPCC Plan template (found in Appendix G to 40 CFR part 112) in lieu of
a full SPCC Plan. The owner or operator can complete the SPCC Plan
template, which is comprised of a set of streamlined SPCC rule
requirements, and implement those streamlined requirements, to comply
with the SPCC regulation. The SPCC Plan template for Tier I qualified
facilities is intended to facilitate the development of SPCC Plans at
Tier I qualified facilities. Once completed and certified by the owner
or operator, the Plan template serves as the SPCC Plan for the
facility. As for any facility subject to the SPCC rule, the owner or
operator must maintain a written copy of the Plan--which in this case
would be the completed and self-certified SPCC Plan template--at the
facility or at the nearest field office if the facility is attended
less than four hours per day (Sec.  112.3(e)(1)).
    The Agency emphasizes that use of the Plan template approach is
optional. An owner or operator of a Tier I qualified facility can
choose to prepare and implement either a full PE-certified SPCC Plan or
a self-certified SPCC Plan following all of the requirements of Sec.
112.6(b) (for a Tier II qualified facility) in order to comply with the
requirements under 40 CFR part 112. See Section V.G of the December 5,
2008 notice at 73 FR 74256 for more information about these technical
corrections.
    EPA is now further clarifying the earlier amendments, as well as
correcting typographical and formatting errors in the following
sections of the Appendix G SPCC Plan Template:
     Introduction--in the second sentence, the term ``meet''
was replaced by ``addresses'' for clarity; and a sentence was added to
clarify that an owner or operator should follow State and local
requirements (such as for permitting, design and construction) and
obtain professional assistance, as appropriate;
     Section I, Self-Certification Statement (Sec.
112.6(a)(1))--points 3c and 3d are combined and edited for increased
clarity. The phrase ``By completing this Plan template'' was removed
because this text is unnecessary; with this revision, EPA clarifies
that completing the template represents the preparation of a Plan, but
not its implementation.
     Section II, Record of Plan Review and Amendments. In the
Five Year Review (Sec.  112.5(b)) paragraph, EPA inserted the term
``SPCC Plan'' for clarity.
     Table G-2 Oil Storage Containers and Capacities--In the
footnote to the table, EPA inserted the word applicability to the
phrase ``qualified facility applicability threshold'' for clarity.
     Table G-3 Secondary Containment and Oil Spill Control--EPA
added the phrase ``cleanup occurs'' which was unintentionally not
printed in the Federal Register notice for the December 2008
amendments;
     Table G-5 Inspections, Testing, Recordkeeping and
Personnel Training--EPA added the word ``bulk'' to clarify that this
provision only applies to aboveground bulk storage containers; added
citations that were inadvertently omitted; corrected typographical
errors; and removed an unnecessary blank row;
     Section A, Onshore Facilities (excluding production)
(112.8(b) through (d). 112.12(b) through (d)). The title of this
section was amended to correct a typographical error.
     Table G-10 General Rule Requirements for Onshore
Facilities--

EPA added the requirement for manual activation of pumps or ejectors
and inspection of accumulations prior to discharge, a rule requirement
that was unintentionally omitted from this Table; fixed typographical
errors; added the word ``bulk'' to clarify that certain provisions only
apply to aboveground bulk storage containers; and defined the table
border;
     Table G-11 General Rule Requirements for Onshore Oil
Production Facilities--EPA defined the table border;
     Table G-15 Checklist of Development and Implementation
Criteria for State, Local and Regional Oil Removal Contingency Plans
(Sec.  109.5)--EPA removed inappropriate checkboxes and reformatted the
table to be consistent with the other tables in Appendix G; and
     Table G-20 Information provided to the National Response
Center in the Event of a Discharge--EPA deleted an unnecessary blank
row.
    Additionally, EPA is providing technical corrections in Sec.  112.6
and Appendix G to amend the self-certification requirements that refer
to produced water containers, as discussed further in Section A.13.f
and C.3 of this notice. EPA is also adding extra space in many of the
tables and formatting them so that each table begins on a new page.
    EPA's amendments to the SPCC rule will have no effect on whether a
facility owner or operator must use a PE to meet the State or local
requirements, because the SPCC rule does not pre-empt any State or
local requirements. In States where the engineer licensing boards have
prohibited SPCC Plan self-certification, the owner or operator must
have a PE certify the Plan. Although this may limit the relief for Tier
II qualified facilities, the owner/operator can develop and certify a
Tier I qualified facility Plan to comply with the SPCC rule and have a
PE certify the SPCC Plan to meet the state requirements.
2. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
    In the December 2008 amendments, EPA exempted from SPCC
applicability underground oil storage tanks deferred from regulation
under 40 CFR part 280, as originally promulgated, that supply emergency
diesel generators at nuclear power generation facilities licensed by
the Nuclear Regulatory Commission (NRC) and that meet the NRC design
criteria and quality assurance criteria. EPA amended Sec.
112.1(d)(2)(i) and Sec.  112.1(d)(4) to include an exemption applicable
to both tanks that are completely buried and tanks that are below-grade
and vaulted. Under NRC regulations, a nuclear power generation facility
must meet certain design criteria to ensure that the plant will be
operated in a manner protective of the public's health and safety,
including a requirement to provide redundant standby power systems (see
10 CFR part 50, Appendix A). These NRC design criteria cover the
design, fabrication, installation, testing and operation of structures,
systems and components important to safety. NRC Regulatory Guide 1.137
describes an acceptable method to comply with NRC requirements
regarding fuel oil systems for standby diesel generators and assurance
of adequate fuel-oil quality. See Section V. O. of the December 5, 2008
notice at 73 FR 74293 for more information.
    The Agency agrees with comments supporting the exemption for
emergency diesel generator tanks at nuclear power stations. EPA has
further amended Sec.  112.1(d)(4) to clarify that this exemption
applies to ``any underground oil storage tanks including below-grade
vaulted tanks, deferred under 40 CFR part 280, as originally
promulgated, that supply emergency diesel generators at a nuclear power
generation facility licensed by the Nuclear Regulatory Commission,
provided that such a tank is subject to any Nuclear Regulatory
Commission provision regarding design and quality criteria, including
but not limited to, 10 CFR part 50.'' (Emphasis added to show modified
wording.) EPA has concluded that this revision makes this provision
easier to understand. EPA has also amended Sec.  112.1(d)(2)(i) to
include the phrase ``including but'' before ``not limited to 10 CFR
part 50'' for consistency.
3. SPCC Plan Preparation and Implementation for New Oil Production
Facilities
    The variables associated with the start of operations and the
employment of green completion techniques at new oil production
facilities could lead to significant changes in necessary storage
capacity and facility design. In the December 2008 amendments,
therefore, EPA finalized an amendment to allow a new oil production
facility a period of six months after the start of operations to
prepare and implement an SPCC Plan. EPA excluded oil production
facilities from the current requirements at Sec.  112.3(b)(1), and
added a new paragraph at Sec.  112.3(b)(3) to require the owner or
operator of a new oil production facility to prepare and implement an
SPCC Plan six months after the start of operations. See Section V.M.3
of the December 5, 2008 notice at 73 FR 74272 for more information
about this amendment.
    This provision does not apply to drilling or workover activities at
existing oil production facilities. Drilling and workover operations
are subject to the requirements at Sec.  112.3(c) for mobile
facilities, and facility owners or operators may implement a general
SPCC Plan. This provision also does not apply to an existing oil
production facility in which a new well is drilled, and added to the
existing tank battery/facility. In this case, the facility owner or
operator must amend the SPCC Plan in accordance with Sec.  112.5(a),
which requires the Plan to be amended within six months of the facility
change, and implemented within six months of the amendment.
    EPA agrees with comments supporting the provision to allow new oil
production facilities six months to prepare and implement a Plan. On
June 19, 2009 (74 FR 29136), EPA amended the compliance date for the
amended SPCC rule to November 10, 2010. When the December 2008
amendments were promulgated, the provision applied at a new oil
production facility that began operations after July 1, 2009, which was
the applicable compliance date. In this action, EPA is making a
technical correction to change the compliance date to November 10,
2010, to align with the current SPCC Plan preparation and
implementation compliance date for all other facilities.
4. Compliance Date Provisions Specific to Farms
    EPA is removing the paragraphs in Sec.  112.3 specific to farms
(the current Sec.  112.3(a)(2) and (b)(2)) because on June 19, 2009 EPA
established the same the compliance dates for farms as for all other
facilities (74 FR 29136); such differentiated provisions are no longer
necessary.
    This amendment does not remove any regulatory requirement for
owners or operators of facilities, including farms, in operation before
August 16, 2002, to develop, implement and maintain an SPCC Plan in
accordance with the SPCC regulations then in effect. Such facility
owners and operators continue to be required to maintain (that is, keep
on-site and implement) their Plans during the interim until the
November 10, 2010 date for revising and implementing their Plans under
the new amendments.

C. Provisions Removed From Final Rule

    After review of comments received and consideration of all relevant
facts, EPA is removing three of the provisions promulgated on December
5, 2008.

These are described in the section below.
1. Exclusions for Oil Production Facilities and Farms From Loading/
Unloading Rack Requirements
    In the December 2008 amendments, EPA specifically excluded onshore
oil production facilities and farms from the loading/unloading rack
requirements at Sec.  112.7(h). This is because the Agency believed,
and comments supported, that loading and unloading racks are not
typically associated with these types of facilities. See Section V.F.3
of the December 5, 2008 notice at 73 FR 74251 for more information
about this amendment.
    Based on review of comments and consideration of all relevant
facts, EPA is removing the specific exclusion for farms and oil
production facilities from the loading/unloading rack requirements of
Sec.  112.7(h). Thus, EPA agrees with comments received on this
amendment stating that certain facilities (i.e., farms and oil
production facilities) should not be treated differently than other
facilities, even if loading/unloading racks are not typically
associated with these types of facilities. In particular, the new
definition for loading/unloading rack (finalized in December 2008 at
Sec.  112.2) clarifies the type of equipment that is subject to the
requirements at Sec.  112.7(h), eliminating the uncertainty that may
have existed at farms and oil production facilities. For facilities
(including farms and oil production facilities) that do not have a
loading/unloading rack as defined in Sec.  112.2, the provisions at
Sec.  112.7(h) do not apply; therefore, a specific exclusion for
facilities based on the assumption that they do not have loading/
unloading racks is unnecessary.
    EPA does not believe there is any basis to specifically exclude
loading/unloading racks from the requirements at Sec.  112.7(h) simply
because they are not typically associated at a facility within a
specific industry sector.
2. Alternative Qualified Facility Eligibility Criteria for an Oil
Production Facility
    In the December 2008 amendments, EPA finalized a provision that
provided alternative criteria to identify qualified facilities in the
onshore oil production sector. The alternative qualified facility
eligibility criteria for an oil production facility were: (1) No more
than two producing wells per single tank battery if the facility has an
injection well; or no more than four producing wells per single tank
battery with no injection wells at the facility; (2) each well produces
no more than ten barrels of crude oil per day; and (3) the facility has
not had a single discharge as described in Sec.  112.1(b) exceeding
1,000 U.S. gallons or two discharges as described in Sec.  112.1(b)
each exceeding 42 U.S. gallons within any twelve month period in the
three years prior to Plan certification, or since becoming subject to
40 CFR part 112 if the facility has been in operation for less than
three years. EPA developed these alternative criteria because most oil
production facilities would not be eligible as Tier I or Tier II
qualified facilities that would allow them the option to self-certify
their SPCC Plans because they generally exceed the maximum oil storage
capacity criterion.
    In this action, EPA is removing the alternative qualified facility
eligibility criteria provision for oil production facilities in the
December 2008 amendments (as described in Section V.M.6, 73 FR 74280)
by amending Sec.  112.3 to remove (g)(2)(i) and (ii), and revising
(g)(2). Paragraph 112.3(g)(2) is amended to state that: ``A Tier II
qualified facility is one that has had no single discharge as described
in Sec.  112.1(b) exceeding 1,000 U.S. gallons or no two discharges as
described in Sec.  112.1(b) each exceeding 42 U.S. gallons within any
twelve month period in the three years prior to the SPCC Plan self-
certification date, or since becoming subject to this part if the
facility has been in operation for less than three years (other than
discharges as described in Sec.  112.1(b) that are the result of
natural disasters, acts of war, or terrorism), and has an aggregate
aboveground oil storage capacity of 10,000 U.S. gallons or less.''
    EPA is taking this action based on review of all comments received,
including those comments that raised serious questions with this
specific exclusion and consideration of all relevant facts. In
particular, the Agency has reconsidered its decision and concluded that
the alternative qualified facility eligibility criteria for onshore oil
production facilities will not effectively protect the environment from
discharges of oil in quantities that may be harmful. The Agency also
believes a PE should be involved in the development and certification
of an SPCC Plan, unless the oil production facility is eligible to
self-certify their Plans based on the qualified facilities criteria
finalized in December 2006, because they typically have complex
equipment and store large quantities of oil. These facilities are of
further concern because they typically have operations in which oil
flows continuously in unattended, remote locations and therefore pose
an environmental threat.
    Allowing unrestricted oil storage capacity undermines the existing
qualified facility eligibility criteria and may pose an environmental
risk. Many small oil production facilities produce low quantities of
oil on a daily basis. EPA intended to provide these small oil
production facilities an alternative approach to the existing 10,000
U.S. gallon aggregate aboveground oil storage capacity qualified
facility eligibility criteria. The qualified facility eligibility
criterion limits the oil storage capacity, restricting this option to
only those facilities with a smaller discharge potential. Although a
small oil production facility produces low quantities of oil on a daily
basis, the Agency recognizes that the accumulated quantity stored can
far exceed 10,000 U.S. gallons. Consequently, the Agency has determined
that the alternative qualified facility eligibility criteria for oil
production facilities are not as protective of the environment as the
qualified facility criteria promulgated on December 26, 2006 (71 FR
77266).
    Based upon EPA's understanding of the particular aboveground oil
storage container capacities and the nature of the fluids handled at
certain small oil production facilities, the Agency has concluded that
the criteria established in the December 2008 amendments specific for
oil production facilities are not an appropriate basis to determine
whether an owner or operator of such a facility is a ``qualified
facility,'' and be eligible to self-certify his SPCC Plan. The
alternative eligibility criteria in the December 2008 amendments for
oil production facilities (73 FR 74236) do not serve to identify a
qualified facility consistent with the approach promulgated in the
December 26, 2006 amendments (71 FR 77266), which focused on facilities
with small oil storage capacities.
    The ten barrels or fewer of oil per day production rate criterion
was used in the December 2008 rulemaking because it is consistent with
the definition of a ``stripper well,'' as codified under the CWA in
1979 (see 40 CFR 435.60) and used by the Interstate Oil and Gas Compact
Commission (IOGCC).\5\ These wells are often referred to as ``marginal
wells.'' This criterion limits the total flowrate of oil at the
facility, but it does not restrict the storage capacity. An oil
production facility with only marginal wells may accumulate large
amounts of oil in a relatively short period of time due to the large
amount of oil and water

mixtures typically stored at stripper well facilities. Without a limit
on storage capacity, the Agency is concerned this approach increases
the likelihood that relatively high-volume facilities will self-certify
their SPCC Plan without the spill prevention benefits afforded by PE
review and certification. This may also lead to certain oil production
facilities that could reasonably be expected to cause substantial harm
to the environment, and therefore subject to FRP requirements under 40
CFR 112.20, to potentially qualify to self-certify SPCC Plans under the
alternative criteria.
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    \5\ See Interstate Oil and Gas Compact Commission, 2006:
``Marginal Wells: Fuels for Economic Growth'', p. 4 (defining
``stripper wells'' as wells that produce 10 barrels of oil per day
or less).
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    Finally, the production rate criterion does not include the
associated fluids, such as produced water, which typically contains
oil. Marginal or stripper wells are often older and near the end of
their production life. The fraction of produced water generated by each