Floating fuel tanks. "It would be extremely helpful ... if the rule specifically addressed floating fuel storage, and the subjects of tank testing and diking and/ or containment." (151)

Largest unit. The risk posed by a facility is more accurately measured by the size of the largest individual unit at the facility rather than the facility's aggregate storage capacity. The failure of one unit is extremely unlikely to cause failure of another unit because small tanks are rarely interconnected. (125)

No threshold. We should focus on setting applicability criteria by tank size, rather than facility storage capacity. (67) We should omit the capacity criterion for total storage capacity at a facility. (170, 189) 46 Oil filled equipment, test tanks. We should exempt test tanks and certain oil filled equipment from part 112 because test tanks do not store oil in bulk, and are not intended to be oil filled. Test tanks could not "reasonably be expected to discharge oil in quantities that may be harmful." (60)

Oil water separators. Part 112 should include facilities that have oil water separators connected to sanitary or storm water sewers or drains. Oil water separators are not subject to part 280 regulations, because they are "flow through process tanks." (43)

Stripper oil and gas facilities. We should exempt stripper oil and gas well facilities from any new regulatory program. (113)

Treatment tanks. We should exclude facility storage and treatment tanks associated with "non contact cooling water systems," or "storm water retention and treatment systems." Although the tanks are designed to remove spilled oil from manufacturing operations and parking lot runoff, the tanks contain insignificant concentrations of oil in the water. (90)

Vaulted tanks. "We would ask that the proposed rule be amended to either exempt vaulted tanks under 3000 gallons, or tanks located inside a facility with adequate secondary containment, or reduce the requirements commensurate with the risk, i. e., the size and location of the tank. ... We request that vaulted tanks or tanks with other engineering controls designed to contain product released from failure or overfill, or which meet the technical requirements of 40 CFR part 280, be exempted from these regulations. We base this request on the fact that we employ containment and controls designed to prevent our stored product from reaching either soil or water. We provide for containment and notification upon product release." (1, 37, 49, 50, 65, 67, 72, 85, 133, 144)

Volume, not capacity. "The 42,000 gallon capacity criteria is good, but CMI suggests that a further delineation separate large and small facilities. For example, the amount of oil actually stored in a tank. Can manufacturers have large tanks, but the amount of oil varies greatly, normally only from 10 to 50 percent oil are contained in the tank." (62) We should change the aboveground storage capacity threshold calculation to an aboveground oil storage volume calculation, so that an owner or operator would count the amount of oil in the storage container. (35, 167) We should change this threshold calculation to a working capacity calculation, so that an owner or operator would only count the amount of tank capacity actually used for storage. (31, 86, and 160)

Response: As explained above (see section V E of this document), we have raised the regulatory threshold for aboveground storage capacity to over 1,320 gallons.

All containers. In response to comments, we are including a minimum container size to use for calculation of the capacity of aboveground storage tanks and completely buried containers. The 55 gallon container is the most widely used commercial bulk 47 container, and these containers are easily counted. Containers below 55 gallons in capacity are typically end use consumer containers. Fifty five gallon containers are also the lowest size bulk container that can be handled by a human. Containers above that size typically require equipment for movement and handling. We considered a minimum container size of one barrel. However, a barrel or 42 gallons is a common volumetric measurement size for oil, but is not a common container size. Therefore, it would not be appropriate to institute a 42 gallon minimum container size.

You need only count containers of 55 gallons or greater in the calculation of the regulatory threshold. You need not count containers, like pints, quarts, and small pails, which have a storage capacity of less than 55 gallons. Some SPCC facilities might therefore drop out of the regulated universe of facilities. You should note, however, that EPA retains authority to require any facility subject to its jurisdiction under section 311( j) of the CWA to prepare and implement an SPCC Plan, or applicable part, to carry out the purposes of the Act.

While some commenters had suggested a higher threshold level, we believe that inclusion of containers of 55 gallons or greater within the calculation for the regulatory threshold is necessary to ensure environmental protection. If we finalized a higher minimum size, the result in some cases would be large amounts of aggregate capacity that would not be counted for SPCC purposes, and would therefore be unregulated, posing a threat to the environment. We believe that it is not necessary to apply SPCC or FRP rules requiring measures like secondary containment, inspections, or integrity testing, to containers smaller than 55 gallons storing oil because a discharge from these containers generally poses a smaller risk to the environment. Furthermore, compliance with the rules for these containers could be extremely burdensome for an owner or operator and could upset manufacturing operations, while providing little or no significant increase in protection of human health or the environment. Many of these smaller containers are constantly being emptied, replaced, and relocated so that serious corrosion will likely soon be detected and undetected leaks become highly unlikely. While we realize that small discharges may harm the environment, depending on where and when the discharge occurs, we believe that this measure will allow facilities to concentrate on the prevention and containment of discharges of oil from those sources most likely to present a more significant risk to human health and the environment.

Animal fats, vegetable oils. A facility storing or using animal fats or vegetable oils (whether edible or not) is subject to part 112 if there is a reasonable possibility of discharge as described in §112. 1( b) from such facility, and the facility meets regulatory threshold criteria. The scope of the rule encompasses all types of oils, not merely petroleum oil.

In 1995, Congress enacted the Edible Oil Regulatory Reform Act (EORRA), 33 U. S. C. 2720. That statute mandates that most Federal agencies differentiate between and establish separate classes for various types of oils, specifically: animal fats and oils and greases, and fish and marine mammal oils; oils of vegetable origin; petroleum oils, 48 and other non petroleum oils and greases. In differentiating between these classes of oils, Federal agencies are directed to consider differences in the physical, chemical, biological, and other properties, and in the environmental effects, of the classes. In response to EORRA, as noted above, we have divided the requirements of the rule by subparts for facilities storing or using the various classes of oils listed in that act.

Because at the present time EPA has not proposed differentiated SPCC requirements for public notice and comment, the requirements for facilities storing or using all classes of oil will remain the same. However, we have published an advance notice of proposed rulemaking seeking comments on how we might differentiate among the requirements for the facilities storing or using various classes of oil. 64 FR 17227, April 8, 1999. If after considering these comments, there is adequate justification for differentiation among the requirements for those facilities, we will propose rule changes.

Appalachian producers, small facilities, stripper oil and gas facilities, oil water separators. The "storage capacity" definition is applicable to both large and small storage and use capacity, no matter where located, because both types of facilities have the same possibility of discharge as described in §112. 1( b). The same rationale applies to stripper oil and gas well facilities, and to oil water separators. An owner or operator of a small facility above the regulatory threshold is subject to the rule, and needs to know how to calculate his storage or use capacity.

Farms. We also disagree that we should exempt farm operations because such operations may be the source of a discharge as described in §112.1( b). We have, however, raised the regulatory threshold to a storage or use capacity greater than 1, 320 gallons, which will have the effect of exempting many small farm facilities from the scope of the rule.

Floating fuel tanks. We also note that barges which store oil, are permanently moored or fastened to the shore, and are no longer used for transportation, are no longer vessels, but bulk storage containers that are part of an offshore facility. Likewise, a container, whether onshore or offshore, which was formerly used for transportation, such as a truck or railroad car, which now is used to store oil, is no longer used for a transportation purpose, and is a bulk storage container.

Largest unit. We disagree that the risk posed by a facility is more accurately measured by the size of the largest individual unit at the facility rather than the facility's aggregate storage capacity. More than one unit may fail at once. For example, permanently manifolded containers are designed, installed, and/ or operated in such a manner that multiple containers function as one storage unit. In a worst case discharge scenario, a single failure could cause a discharge as described in §112.1( b) of the contents of more than one container.

No threshold. We disagree that we should omit the capacity criterion for total storage capacity at a facility, and instead focus on tank size. More than one container may fail 49 at the same time due to human error or a catastrophic event whether the containers are interconnected or not. For example, permanently manifolded containers are designed, installed, and/ or operated in such a manner that multiple containers function as one storage unit. In a worst case discharge scenario, a single failure could cause a discharge as described in §112.1( b) of the contents of more than one container.

Oil filled equipment. Types of containers counted as storage capacity would include flo through separators, tanks used for "emergency" storage, test tanks, transformers, and other oil filled equipment. This equipment may also experience a discharge as described in §112.1( b) and is therefore properly regulated under the SPCC program.

Treatment tanks. We agree with the commenter that certain wastewater treatment facilities or parts thereof should be exempted from the rule, if used exclusively for wastewater treatment and not used to meet any other requirement of part 112. We have therefore amended the rule to reflect that agreement (see §112.1( d)( 6)). No longer subject to the rule would be wastewater treatment facilities or parts thereof such as treatment systems at POTWs and industrial facilities treating oily wastewater.

Many of these wastewater treatment facilities or parts thereof are subject to NPDES or state equivalent permitting requirements that involve operating and maintaining the facility to prevent discharges. 40 CFR 122.41( e). The NPDES or state equivalent process ensures review and approval of the facility's: plans and specifications; operation/ maintenance manuals and procedures; and, Stormwater Pollution Prevention Plans, which may include Best Management Practice Plans (BMP).

Many affected facilities are subject to a BMP prepared under an NPDES permit. Some of those plans provide protections equivalent to SPCC Plans. BMPs are additional conditions which may supplement effluent limitations in NPDES permits. Under section 402( a)( 1) of the CWA, BMPs may be imposed when the Administrator determines that such conditions are necessary to carry out the provisions of the Act. See 40 CFR 122.44( k). CWA section 304( e) authorizes EPA to promulgate BMPs as effluent limitations guidelines. NPDES rules provide for BMPs when: authorized under section 304( e) of the CWA for the control of toxic pollutants and hazardous substances; numeric limitations are infeasible; or, the practices are reasonably necessary to achieve effluent limitations and standards to carry out the purposes of the CWA. In addition, each NPDES or state equivalent permit for a wastewater treatment system must contain operation and maintenance requirements to reduce the risk of discharges. 40 CFR 122.41( e).

Additionally, some wastewater is pretreated prior to discharge to a permitted wastewater treatment facility. The CWA authorizes EPA to establish pretreatment standards for pollutants that pass through or interfere with the operation of POTWs. The General Pretreatment Regulations (GPR), which set for the framework for the implementation of categorical pretreatment standards, are found at 40 CFR part 403. The GPR prohibit a user from introducing a pollutant into a POTW which causes pass through or interference. 40 CFR 403.5( a)( 1). More specifically, the GPR also prohibit 50 the introduction into of POTW of "petroleum, oil, nonbiodegradable cutting oil, or products of mineral oil origin in amounts that will cause interference or pass through. 40 CFR 403.5( b)( 6). EPA believes that the GPR and the more specific categorical pretreatment standards, some of which allow indirect dischargers to adopt a BMP as an alternative way to meet pretreatment standards, will work to prevent the discharge of oil from wastewater treatment systems into navigable waters or adjoining shorelines by way of a POTW.

However, if a wastewater facility or part thereof is used for the purpose of storing oil, then there is no exemption, and its capacity must be counted as part of the storage capacity of the facility. Any oil storage capacity associated with or incidental to these wastewater treatment facilities or parts thereof continues to be subject to part 112. At permitted wastewater treatment facilities, storage capacity includes bulk storage containers, hydraulic equipment associated with the treatment process, containers used to store oil which feed an emergency generator associated with wastewater treatment, and slop tanks or other containers used to store oil resulting from treatment. Some flow through treatment such as oil/ water separators have a storage capacity within the treatment unit itself. This storage capacity is subject to the rule. An example of a wastewater treatment unit that functions as storage is a treatment unit that accumulates oil and performs no further treatment, such as a bulk storage container used to separate oil and water mixtures, in which oil is stored in the container after removal of the water in the separation/ treatment process.

We do not consider wastewater treatment facilities or parts thereof at an oil production, oil recovery, or oil recycling facility to be wastewater treatment for purposes of this paragraph. These facilities generally lack NPDES or state equivalent permits and thus lack the protections that such permits provide. Production facilities are normally unmanned and therefore lack constant human oversight and inspection. Produced water generated by the production process normally contains saline water as a contaminant in the oil, which might aggravate environmental conditions in addition to the toxicity of the oil in the case of a discharge.

Additionally, the goal of an oil production, oil recovery, or oil recycling facility is to maximize the production or recovery of oil, while eliminating impurities in the oil, including water, whereas the goal of a wastewater treatment facility is to purify water. Neither an oil production facility, nor an oil recovery or oil recycling facility treats water, instead they treat oil. For purposes of this exemption, produced water is not considered wastewater and treatment of produced water is not considered wastewater treatment. Therefore, a facility which stores, treats, or otherwise uses produced water remains subject to the rule. At oil drilling, oil production, oil recycling, or oil recovery facilities, treatment units subject to the rule include open oil pits or ponds associated with oil production operations, oil/ water separators (gun barrels), and heater/ treater units. Open oil pits or ponds function as another form of bulk storage container and are not used for wastewater treatment. Open oil pits or ponds also pose numerous environmental risks to birds and other wildlife. 51 Examples of wastewater treatment facilities or parts thereof used to meet a part 112 requirement include an oil/ water separator used to meet any SPCC requirement. Oil/ water separators used to meet SPCC requirements include oil/ water separators used as general facility secondary containment (i. e., §112.7( c), secondary containment requirements for loading and unloading (i. e., §112.7( h)), and for facility drainage (i. e., §112.8( b) or §112.9( b)).

Whether a wastewater treatment facility or part thereof is used exclusively for wastewater treatment (i. e., not storage or other use of oil) or used to satisfy a requirement of part 112 will often be a facility specific determination based on the activity associated with the facility or part thereof. Only the portion of the facility (except at an oil production, oil recovery, or oil recycling facility) used exclusively for wastewater treatment and not used to meet any part 112 requirement is exempt from part 112. Storage or use of oil at such a facility will continue to be subject to part 112.

Although we exempt wastewater treatment facilities or parts thereof from the rule under certain circumstances, a mixture of wastewater and oil still is "oil" under the statutory and regulatory definition of the term (33 USC 1321( a)( 1) and 40 CFR 110.2 and 112.2). Thus, while we are excluding from the scope of the rule certain wastewater treatment facilities or parts thereof, a discharge of wastewater containing oil to navigable waters or adjoining shorelines in a "harmful quantity" (40 CFR Part 110) is prohibited. Thus, to avoid such discharges, we would expect owners or operators to comply with the applicable permitting requirements, including best management practices and operation and maintenance provisions.

USTs. We agree that completely buried tanks that are subject to all of the technical requirements of 40 CFR part 280 or a State program approved under 40 CFR part 281 should be exempted from part 112, and have taken that action. See section V. C of this document.

Vaulted tanks. We also disagree that we should exempt aboveground, vaulted tanks from part 112. Vaulted tanks are generally excluded from the scope of 40 CFR part 280. The definition of "underground storage tank" at 40 CFR 280.12( i) excludes from its scope a "storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor." These tanks might reasonably experience a discharge as described in §112.1( b). Therefore, it is reasonable that they be within the scope of part 112. Merely because these tanks are the subject of local fire and safety regulations does not guarantee that there will be adequate environmental protection to prevent a discharge as described in §112.1( b), because that is not the purpose of those regulations. Such codes may provide lesser protection than part 112. For example, NFPA 30: 2 3.4.3( b) specifically indicates that a dike need only provide containment for the largest tank, while part 112 requires freeboard for precipitation.

Volume, not capacity. We also disagree that we should base the regulation on the amount of oil actually stored in the tanks. In most instances the shell capacity of a 52 container will define its storage capacity. The shell capacity (or nominal or gross capacity) is the amount of oil that a container is designed to hold. If a certain portion of a container is incapable of storing oil because of its integral design, for example electrical equipment or other interior component might take up space, then the shell capacity of the container is reduced to the volume the container might hold. When the integral design of a container has been altered by actions such as drilling a hole in the side of the container so that it cannot hold oil above that point, shell capacity remains the measure of storage capacity because such alteration can be altered again at will to restore the former storage capacity. When the alteration is an action such as the installation of a double bottom or new floor to the container, the integral design of the container has changed, and may result in a reduction in shell capacity. We disagree that operating volume should be the measurement, because the operating volume of a tank can be changed at will to below its shell capacity.

The key to the definition of "storage capacity" is the availability of the container for drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, or consuming oil; whether it is available for one of those uses or whether it is permanently closed. Containers available for one of the above described uses count towards storage capacity, those not used for these activities do not.

IV E( 1) 2 Other comments Comments: Scope of rule. "EPA has misinterpreted its authority under section 311( j)( 1) and has exceeded its jurisdiction in both existing and proposed regulations. Section 311( j)( 1)( C) provides authority to require spill prevention and containment equipment rather than authority to regulate facilities." (32, 42) We should clarify whether proposed §112.1( b)( 2) and §112.1( b)( 3) expanded the "scope of covered facilities" beyond those described in §112. 1( b)( 1). We should insert "described in subparagraph (1)" after "facilities" in subparagraphs (2) and (3). (L24)

Automotive businesses. We should exclude from part 112, automotive businesses with a total aboveground storage volume of new or used oil in quantities of 10,000 gallons or less, and aboveground tanks with a volume of 2, 500 gallons or less. However, we should still require owners or operators to provide adequate secondary containment for the tanks, report releases to the EPA Administrator, and cleanup releases within 72 hours. (71)

Mobile containers. Inclusion. We should include mobile and portable container capacity within this calculation. (L11)

Exclusion. We should exclude the capacity of mobile or portable containers of oil from a facility's total aboveground storage capacity determination. (33, 89)

Production facilities, large or small. We should modify the proposed requirements to recognize that a small production facility presents little actual threat of a spill (based on 53 history and amount of oil present). (28) We could inadvertently cover some facilities not currently covered by the SPCC rule. The commenter explained that some production locations may have total storage capacity which exceeds the volume of fluid ever stored in the tanks. (86) We should exclude production tanks because aboveground tanks associated with producing oil and gas wells are small, remotely located and generally constructed to API Production Standards. (167) Interprets a statement in the preamble to mean that small and large facility classifications would not apply to oil production facilities. Asks whether this assumption is true. (L15)

Reasonable expectation of discharge. Many SPCC regulated facilities are not located near a permanent surface water body, so an accidental discharge from them will rarely reach surface waters. (75, 79) We should obtain data and provide specific parameters to determine whether an accidental discharge could "reasonably be expected" to reach navigable waters. (75)

Can industry. We should reconsider the scope of the program for the can making industry, already governed by many spill prevention and accidental release regulations. (62)

Response: Scope of rule. Proposed §112.1( b)( 2) and (3) (§ 112.1( b)( 3) and (4) in the final rule) do not expand the applicability of the rule beyond facilities described in proposed §112.1( b)( 1). In response to the commenter's suggestion, we have revised §112.1( b) to list the types of containers that may be subject to the rule. We note, in response to comment, that we do not regulate all facilities in the United States. We only regulate facilities storing or using oil over the regulatory threshold amount from which there is a reasonable possibility of a discharge as described in §112. 1( b). CWA section 311( j)( 1)( C) authorizes EPA to establish procedures, methods, and equipment, and other requirements for equipment to prevent and contain discharges of oil from onshore facilities. This rule establishes such procedures, methods, and in some cases equipment or other requirements for equipment to prevent and contain discharges from facilities and, thus, is consistent with that authority.

Automotive businesses. We disagree that we should exclude from part 112, automotive businesses with a total aboveground storage volume of new or used oil in quantities of 10,000 gallons or less, and aboveground tanks with a volume of 2, 500 gallons or less whether we required the owner or operator to provide adequate secondary containment for the tanks, report releases to the EPA Administrator, and cleanup releases within 72 hours or not. Such facilities could be the source of a discharge as described in §112.1( b) and must therefore be regulated.

Mobile containers. We disagree that we should exclude the capacity of mobile or portable containers of oil from a facility's total aboveground storage capacity determination. A mobile facility could be the source of a discharge as described in §112.1( b) and must therefore be regulated. 54 Production facilities, large or small. We do not differentiate in the rule between large and small facilities because the possibility of a discharge as described in §112. 1( b) is the same for both. Therefore, any facility with the requisite storage or use capacity, whether a small or large production facility, is subject to part 112. We note that shell capacity is the measure of capacity. See the discussion concerning shell capacity in section IV E( 1) 1 of this document.

Reasonable expectation of discharge. We disagree that we could or should set specific parameters to determine whether an accidental discharge could reasonably be expected to reach protected areas. Such a determination is dependent upon facilityspecific and location specific factors.

Can industry. The can making industry may store or use oil. If a can industry facility may reasonably be expected to discharge oil as described in §112.1( b) and has the requisite storage or use capacity, it is subject to the rule. However, an owner or operator of an SPCC facility may use an alternative plan as a substitute for an SPCC Plan if such plan meets all applicable part 112 requirements and is cross referenced to such requirements. An owner or operator also may supplement an alternative plan that does not meet all part 112 provisions with sections that do meet part 112.

IV  E( 2): Applicability  Electrical and other oil filled equipment Background: In the 1991 preamble, we noted that certain facilities may have equipment, such as electrical transformers, that contains significant quantities of oil necessary for operational purposes. We also clarified that an owner or operator must consider the oil storage capacity of oil filled equipment when determining total storage capacity for subjection to SPCC regulation. Equipment use for operational purposes is not subject to the bulk storage container provisions, such as §§ 112.8( c) and 112.9( d). However, such equipment is subject to other applicable SPCC requirements, including the general requirements in §112.7.

Comments: Authority.

No CWA authority. "To be consistent with legislative intent, the Agency should make clear that the SPCC requirements do not apply to electrical equipment and to other devices that use oil operationally." (3, 66, 92, 98, 100, 104, 125, 132, 134, 138, 156, 162, 163, 164, 170, 175, 184, 189, L2, L6, L7, L14, L16, L20)

Rule activities  storage or use of oil. We should clarify whether oil filled equipment, such as transformers and oil breakers, are oil storage tanks. (66) Because "electrical equipment does not `consume' oil or oil products," and because none of the other activities listed are relevant to electrical equipment in the applicability section, the rule does not apply to it. Activities listed in the §112. 1( b)( 1) applicability criteria involve oil movement from one storage vessel to another, whereas dielectric fluid remains stationary and does not pose a risk to the environment. (125, 189) We should add a §112.1( d)( 5) to specifically 55 exclude from the SPCC rule, equipment or machinery containing oil for operational use rather than storage. (138) Asks us to confirm that facilities with oil filled electrical equipment are not engaged in the §112.1( b) activities and are not subject to SPCC requirements. (184) We should exclude oil filled equipment from the SPCC regulations. We should expand the examples of equipment (that contain significant quantities of oil for operational purposes rather than storage purposes) identified in the preamble to include transformers, capacitors, and other manufacturing equipment such as small lube oil systems, fat traps, and oil water separators. (L6)

Facility definition. Substations and other installations containing electrical equipment are not facilities as defined in proposed §112.2( f). Electrical equipment does not fall under §112.1( b)( 1) since this section applies to facilities that consume oil, and the proposed §112.2( f) definition does not include units that consume oil. (125, 189) We should base our §112.1( b) applicability criteria on the proposed §112.2( f) facility definition so that the rule applies to oil well drilling operations, oil production, oil refining, oil storage, and waste treatment only. (189)

UST rules. The Underground Storage Tank (UST) program (part 280) excludes equipment or machinery containing regulated substances (i. e., oil or dielectric fluid) for operational purposes, such as hydraulic lift tanks and electrical equipment tanks. (170, 189)

Bulk storage. We should not consider electrical equipment as bulk storage containers and that proposed §§ 112.8( c) and 112.9( d) should not apply to such equipment. (41, 170, 164, 184) We should specifically state in the rule – not the preamble – that electrical equipment is not a bulk tank under the SPCC rule. (175) Products used in electrical equipment are distinct from oils stored in bulk storage tanks. (184)

Whose storage capacity? Frequently, the power company – not the facility owner or operator – owns the transformer. In such a case, must the owner or operator must include the equipment's oil capacity in determining applicability? (39)

Risk. "First, electrical equipment poses substantially less risk to the environment than do tanks, and second, many tank requirements are simply inappropriate for electrical equipment." (39, 41, 66, 125, 164, 170) Electrical equipment poses no sufficient environmental risk because of stringent design, construction, and inspection standards. (184, 189)

Cable systems. "The Agency should exclude underground electric cable systems from SPCC requirements, regardless of the Agency's position on other types of electrical equipment.... ... The technology simply does not exist currently to apply the secondary containment, inspection, and integrity testing requirements of the SPCC program to underground cable systems." (125) We 56 should exclude electric cable systems from the rule, since such systems include tanks and reservoirs for back up oil and are surrounded by dielectric fluids. We should recognize that electric utility facilities include features that serve operational functions and reduce risks associated with potential discharges. If we do not exclude electric cable systems from SPCC requirements, then we should require owners or operators to prepare contingency plans, but should delete the proposed requirement to submit contingency plans when containment or diversion is not feasible. (175) We should exclude electrical equipment from the SPCC program or tailor the program to reflect specific electrical equipment characteristics. Due to the location, size, and nature of underground cable systems that extend many miles under urban streets, it is impossible for such systems to comply with SPCC tank requirements. SPCC requirements cannot be applied to dielectric fluid filled cable systems because the design, construction, and operation of such systems differ from tank systems. (125, 189)

Response: Authority, use of oil. We disagree that operational equipment is not subject to the SPCC rule. We have amended §112.1( b) to clarify that using oil, for example operationally, may subject a facility to SPCC jurisdiction as long as the other applicability criteria apply, for example, oil storage capacity, or location. Such a facility might reasonably be expected to discharge oil as described in §112.1( b). Therefore, the prevention of discharges from such facility falls within the scope of the statute. However, we have distinguished the bulk storage of oil from the operational use of oil. We define "bulk storage container" in the final rule to mean any container used to store oil. The storage of oil may be prior to use, while being used, or prior to further distribution in commerce. For clarity, we have specifically excluded oil filled electrical,

operating, or manufacturing equipment from the "bulk storage container" definition.

Facilities that use oil operationally include electrical substations, facilities containing electrical transformers, and certain hydraulic or manufacturing equipment. The requirements for bulk storage containers may not always apply to these facilities since the primary purpose of this equipment is not the storage of oil in bulk. Facilities with equipment containing oil for ancillary purposes are not required to provide the secondary containment required for bulk storage facilities (§ 112. 8( c)) and onshore production facilities (§ 112. 9( c)), nor implement the other provisions of §112. 8( c) or §112. 9( c). Oil filled equipment must meet other SPCC requirements, for example, the general requirements of this part, including §112.7( c), to provide appropriate containment and/ or diversionary structures to prevent discharged oil from reaching a navigable watercourse. The general requirement for secondary containment, which can be provided by various means including drainage systems, spill diversion ponds, etc., will provide for safety and also the needs of section 311( j)( 1)( C) of the CWA. EPA will continue to evaluate whether the general secondary containment requirements found in §112.7( c) should be modified for small electrical and other types of equipment which use oil for operating purposes. We intend to publish a notice asking for additional data and comment on this issue. 57 In addition, a facility may deviate from any inappropriate SPCC requirements if the owner or operator explains his reasons for nonconformance and provides equivalent environmental protection by some other means. See §112.7( a)( 2). See also §112.7( d).

Facility definition. We disagree that our authority does not extend to facilities. Section 311( j)( 1)( C) of the statute authorizes and requires the President (and EPA, through delegation in Executive Order 12777, 56 FR 54757, October 22, 1991) to issue regulations consistent with the National Oil and Hazardous Substances Pollution Contingency Plan, and consistent with maritime safety and with marine and navigation laws, which establish "procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore and offshore facilities, and to contain such discharges." This language authorizes the President to issue oil spill prevention rules which pertain to onshore facilities and offshore facilities and not just "equipment."

In order to fulfill the statutory mandate, it is necessary to regulate the facilities from which discharges emanate. Moreover, although the term "facility" is not defined in the statute, both "onshore facility" and "offshore facility" are defined terms in CWA section 311. They have also been defined terms in the SPCC rule since its inception in 1974. In the 1991 proposal, EPA proposed a definition of "facility" to implement the CWA. That definition was based on a Memorandum of Understanding (MOU) between the Secretary of Transportation and the EPA Administrator dated November 24, 1971 (36 FR 24080). The MOU, which has been published as Appendix A to part 112 since December 11, 1973 (38 FR 34164, 34170), defines in detail what constitutes a facility. Thus, there has long been a common understanding of the term. That understanding has been reinforced by frequent use of the term in context within the SPCC rule since it became effective in 1974. To promote clarity and to maintain all definitions in one place, the proposed definition has been finalized in this rulemaking.

While section 311( j)( 1)( C) of the Act may not explicitly mention jurisdictional criteria, section 311( b) of the Act does. Section 311( b) establishes as the policy of the United States that there shall be "no discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act)." Thus, the location or "jurisdictional" criteria contained in §112.1( b) are appropriate for inclusion in the rule.

UST rules. The two programs (SPCC and UST) have different purposes. Therefore, the rules differ in important aspects. Operational equipment is 58 included under the SPCC rules because such equipment may experience a discharge as described in §112.1( b).

Bulk storage. We agree and clarify in today's rule that oil filled electrical, operating, or manufacturing equipment is not a bulk storage container. See the discussion on the applicability of the rule to electrical and other operating equipment under §112.1( b) in today's preamble and this section. See also the definition of "bulk storage container" in §112.2. For a discussion of minimum size containers to which the rule applies, see the discussion under §112.1( d)( 2)( ii) in today's preamble and in section V. G of this document.

Regulatory threshold, storage capacity. Oil stored in operating equipment counts as storage capacity for purposes of determining whether the facility meets the regulatory threshold of greater than 1,320 gallons for aboveground containers. Such equipment or machinery might reasonably be expected to discharge oil as described in §112.1( b). Aggregate capacity is important even if the equipment is not hydraulically interconnected because if a catastrophic event were to occur, all of the equipment might fail at once and discharge oil. The key to the definition of storage capacity is the availability of the container for drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, or consuming oil; whether it is available for one of those uses or whether it is permanently closed. Containers available for one of the above described uses count towards storage capacity, those not used for these activities do not. Types of containers counted as storage capacity would include flothrough separators, tanks used for "emergency" storage, transformers, and other oilfilled equipment.

In response to the comment that the power company – not the facility owner or operator – frequently owns the transformers located at the facility, we note that the SPCC regulations generally prescribe requirements for the owner or operator of a facility. Either or both may be responsible for part 112 compliance.

Risk. We also disagree that electrical equipment poses no environmental risk because of stringent design, construction, and inspection standards. Such standards are not necessarily aimed at preventing discharges as described in §112. 1( b), and a facility containing such equipment might reasonably be expected to experience a discharge. Therefore, it may fall within the scope of the statute.

Specific rules. We agree that differentiated rules may be warranted for facilities using electrical or other oil filled operating equipment. In 1995, Congress enacted the Edible Oil Regulatory Reform Act (EORRA), 33 U. S. C. 2720. That statute mandates that most Federal agencies differentiate between and establish separate classes for various types of oils, specifically: animal fats and oils and greases, and fish and marine mammal oils; oils of vegetable origin; petroleum oils, and other non petroleum oils and greases. In differentiating between these classes of oils, Federal agencies are directed to consider differences in the physical, chemical, biological, and other properties, and in the environmental effects, of the classes. In response to EORRA, as noted above, 59 we have divided the requirements of the rule by subparts for facilities storing or using the various classes of oils listed in that act.

Because at the present time EPA has not proposed differentiated SPCC requirements for public notice and comment, the requirements for facilities storing or using all classes of oil will remain the same. However, we have published an advance notice of proposed rulemaking seeking comments on how we might differentiate among the requirements for the facilities storing or using various classes of oil. 64 FR 17227, April 8, 1999. If after considering these comments, there is adequate justification for differentiation among the requirements for those facilities, including facilities with electrical or other oil filled operating equipment, we will propose rule changes.

Deviations are available when a requirement is not appropriate for a particular kind of facility. See categories X B and E of this document, and §112.7( a)( 2) and (d).

IV E( 3): Minimum container size  §112.1( d)( 2) and (5)

Background: Under §112.1( d)( 2) of the current rule, all size containers are counted in determining the storage capacity of the facility. In 1991, we proposed no changes in the size of a container which must be counted.

Comments: Exclude small containers. "As written, this captures pints, quarts, equipment reservoirs of any size, once a facility determined that it was covered under this regulation." "Clearly, compliance with these requirements for all containers of any size will be extremely burdensome for some of the regulated community and will greatly upset ongoing manufacturing operations, while providing no significant increase in protection of human health and the environment." (33, 62, 66, 115, 119, 127, 175, 190, L7)

Suggested thresholds for minimum size aboveground storage.

250 gallons or less. (62).

55 gallons or less. (29, 57, 103, 119, L24)

660 gallons or less. (22, 48, 67, 91, 92, 98, 106, 125, 133, 150, 167, 182, 187, L14)

10,000 gallons. (170)

25,000 gallons. (189)

Response: Minimum container size. In response to comments, we are introducing a minimum container size to use for calculation of the capacity of aboveground storage tanks and completely buried containers. Therefore, you need only count containers of 55 gallons or greater in the calculation of the regulatory threshold for storage capacity. 60 You need not count containers, like pints, quarts, and small pails, which have a storage capacity of less than 55 gallons, in capacity calculations. Some SPCC facilities might therefore drop out of the regulated universe of facilities. You should note, however, that EPA retains authority to require any facility subject to its jurisdiction under section 311( j) of the CWA to prepare and implement an SPCC Plan, or applicable part, to carry out the purposes of the Act.

While some commenters had suggested a higher threshold level, we believe that inclusion of containers of 55 gallons or greater within the calculation for the regulatory threshold is necessary to ensure environmental protection. If we finalized a higher minimum size, the result in some cases would be large amounts of aggregate capacity that would not be counted for SPCC purposes, and would therefore be unregulated, posing a threat to the environment. We believe that it is not necessary to apply SPCC or FRP rules requiring measures like secondary containment, inspections, or integrity testing, to containers smaller than 55 gallons storing oil because a discharge from these containers generally poses a smaller risk to the environment. Furthermore, compliance with the rules for these containers could be extremely burdensome for an owner or operator and could upset manufacturing operations, while providing little or no significant increase in protection of human health or the environment. Many of these smaller containers are constantly being emptied, replaced, and relocated so that serious corrosion will likely soon be detected and undetected leaks become highly unlikely. While we realize that small discharges may harm the environment, depending on where and when the discharge occurs, we believe that this measure will allow facilities to concentrate on the prevention and containment of discharges of oil from those sources most likely to present a more significant risk to human health and the environment.

IV  G Wastewater Treatment  §112.1( d)( 6).

Background: In 1991, EPA proposed various changes to §112.1( d) concerning exemptions to part 112, and received comments on its proposals. Among those comments was one suggesting an exemption for certain treatment systems.

Comments: One commenter suggested that the "§ 112.1 exceptions should be expanded to include facility storage and treatment tanks associated with `non contact cooling water systems' and/ or `storm water retention and treatment systems. Although these tanks are designed to remove spilled oil from manufacturing operations and parking lot runoff, the concentration of oil in the water at any given time would be insignificant. These tanks are typically very large, i. e., in excess of 100,000 gallons, and are typically not contained by diked walls or impervious surfaces. GM believes the cost to contain these structures could be better spent on other SPCC regulatory requirements."

Response: We agree with the commenter that certain wastewater treatment facilities or parts thereof should be exempted from the rule, if used exclusively for wastewater treatment and not used to meet any other requirement of part 112. We have therefore 61 amended the rule to reflect that agreement. No longer subject to the rule would be wastewater treatment facilities or parts thereof such as treatment systems at POTWs and industrial facilities treating oily wastewater.

Many of these wastewater treatment facilities or parts thereof are subject to NPDES or state equivalent permitting requirements that involve operating and maintaining the facility to prevent discharges. 40 CFR 122.41( e). The NPDES or state equivalent process ensures review and approval of the facility's: plans and specifications; operation/ maintenance manuals and procedures; and, Stormwater Pollution Prevention Plans, which may include Best Management Practice Plans (BMP). Many affected facilities are subject to a BMP prepared under an NPDES permit. Some of those plans provide protections equivalent to SPCC Plans. BMPs are additional conditions which may supplement effluent limitations in NPDES permits. Under section 402( a)( 1) of the CWA, BMPs may be imposed when the Administrator determines that such conditions are necessary to carry out the provisions of the Act. See 40 CFR 122.44( k). CWA section 304( e) authorizes EPA to promulgate BMPs as effluent limitations guidelines. NPDES rules provide for BMPs when: authorized under section 304( e) of the CWA for the control of toxic pollutants and hazardous substances; numeric limitations are infeasible; or, the practices are reasonably necessary to achieve effluent limitations and standards to carry out the purposes of the CWA. In addition, each NPDES or state equivalent permit for a wastewater treatment system must contain operation and maintenance requirements to reduce the risk of discharges. 40 CFR 122.41( e).

Additionally, some wastewater is pretreated prior to discharge to a permitted wastewater treatment facility. The CWA authorizes EPA to establish pretreatment standards for pollutants that pass through or interfere with the operation of POTWs. The General Pretreatment Regulations (GPR), which set for the framework for the implementation of categorical pretreatment standards, are found at 40 CFR part 403. The GPR prohibit a user from introducing a pollutant into a POTW which causes pass through or interference. 40 CFR 403.5( a)( 1). More specifically, the GPR also prohibit the introduction into of POTW of "petroleum, oil, nonbiodegradable cutting oil, or products of mineral oil origin in amounts that will cause interference or pass through. 40 CFR 403.5( b)( 6). EPA believes that the GPR and the more specific categorical pretreatment standards, some of which allow indirect dischargers to adopt a BMP as an alternative way to meet pretreatment standards, will work to prevent the discharge of oil from wastewater treatment systems into navigable waters or adjoining shorelines by way of a POTW.

However, if a wastewater facility or part thereof is used for the purpose of storing oil, then there is no exemption, and its capacity must be counted as part of the storage capacity of the facility. Any oil storage capacity associated with or incidental to these wastewater treatment facilities or parts thereof continues to be subject to part 112. At permitted wastewater treatment facilities, storage capacity includes bulk storage containers, hydraulic equipment associated with the treatment process, containers used to store oil which feed an emergency generator associated with wastewater 62 treatment, and slop tanks or other containers used to store oil resulting from treatment. Some flow through treatment such as oil/ water separators have a storage capacity within the treatment unit itself. This storage capacity is subject to the rule. An example of a wastewater treatment unit that functions as storage is a treatment unit that accumulates oil and performs no further treatment, such as a bulk storage container used to separate oil and water mixtures, in which oil is stored in the container after removal of the water in the separation/ treatment process.

We do not consider wastewater treatment facilities or parts thereof at an oil production, oil recovery, or oil recycling facility to be wastewater treatment for purposes of this paragraph. These facilities generally lack NPDES or state equivalent permits and thus lack the protections that such permits provide. Production facilities are normally unmanned and therefore lack constant human oversight and inspection. Produced water generated by the production process normally contains saline water as a contaminant in the oil, which might aggravate environmental conditions in addition to the toxicity of the oil in the case of a discharge.

Additionally, the goal of an oil production, oil recovery, or oil recycling facility is to maximize the production or recovery of oil, while eliminating impurities in the oil, including water, whereas the goal of a wastewater treatment facility is to purify water. Neither an oil production facility, nor an oil recovery or oil recycling facility treats water, instead they treat oil. For purposes of this exemption, produced water is not considered wastewater and treatment of produced water is not considered wastewater treatment. Therefore, a facility which stores, treats, or otherwise uses produced water remains subject to the rule. At oil drilling, oil production, oil recycling, or oil recovery facilities, treatment units subject to the rule include open oil pits or ponds associated with oil production operations, oil/ water separators (gun barrels), and heater/ treater units. Open oil pits or ponds function as another form of bulk storage container and are not used for wastewater treatment. Open oil pits or ponds also pose numerous environmental risks to birds and other wildlife.

Examples of wastewater treatment facilities or parts thereof used to meet a part 112 requirement include an oil/ water separator used to meet any SPCC requirement. Oil/ water separators used to meet SPCC requirements include oil/ water separators used as general facility secondary containment (i. e., §112.7( c), secondary containment requirements for loading and unloading (i. e., §112.7( h)), and for facility drainage (i. e., §112.8( b) or §112.9( b)).

Whether a wastewater treatment facility or part thereof is used exclusively for wastewater treatment (i. e., not storage or other use of oil) or used to satisfy a requirement of part 112 will often be a facility specific determination based on the activity associated with the facility or part thereof. Only the portion of the facility (except at an oil production, oil recovery, or oil recycling facility) used exclusively for wastewater treatment and not used to meet any part 112 requirement is exempt from part 112. Storage or use of oil at such a facility will continue to be subject to part 112. 63 Although we exempt wastewater treatment facilities or parts thereof from the rule under certain circumstances, a mixture of wastewater and oil still is "oil" under the statutory and regulatory definition of the term (33 USC 1321( a)( 1) and 40 CFR 110.2 and 112.2). Thus, while we are excluding from the scope of the rule certain wastewater treatment facilities or parts thereof, a discharge of wastewater containing oil to navigable waters or adjoining shorelines in a "harmful quantity" (40 CFR Part 110) is prohibited. Thus, to avoid such discharges, we would expect owners or operators to comply with the applicable permitting requirements, including best management practices and operation and maintenance provisions. 64 Category V: Definitions  §112.2 Background: In §112.2 of the current rule are found definitions for terms used in 40 CFR part 112. In §112.2 of the 1991, we proposed revisions of certain definitions, adding some new definitions, and removing others. We also proposed to move the definitions of oil production facilities (onshore) and oil drilling, production, or workover facilities (offshore) from §112.7( e)( 5)( i) and 112.7( e)( 7)( i), respectively, to §112.2.

V 1 Breakout tank Background: In §112.2( a) of the 1991 proposal, we proposed to define breakout tank to distinguish between facilities regulated by the U. S. Department of Transportation (DOT) and EPA. (Breakout tanks fall under DOT jurisdiction; we regulate facilities with bulk storage tanks.) Breakout tanks are used either to compensate for pressure surges or control and maintain pressure through pipelines. In §112.2 of the final rule, we adopted a modified version of DOT's 49 CFR part 195 definition, and defined a breakout tank as "a container used to relieve surges in an oil pipeline system or to receive and store oil transported by a pipeline for reinjection and continued transportation by pipeline."

Comments: Support for a definition. Support for including a definition of breakout tank in part 112. (94, 95, 102)

DOT definition. "Valvoline supports the inclusion of a definition of `breakout tank' in the proposed regulations. However, in light of the fact that this is a transportation related term, the definition should be identical to that contained in 40 CFR §195.2. An arbitrary change to this definition will result in wide spread confusion regarding what constitutes a breakout tank and which definition takes precedence. " (77, 95, 101, 102,113, 121, 153, 173, 175) We should consider providing guidance on when each agency regulates certain tanks. (94) Two different definitions would result in duplicative regulation of certain tanks. (102, 153)

Response: On the suggestion of commenters, EPA has adopted a modified version of the DOT definition in 49 CFR 195.2. This revision promotes consistency in the DOT and EPA definitions to aid the regulators and regulated community. We modified the DOT definition by substituting the word "oil" for "hazardous liquid," because our rules apply only to oil. We also use in the definition the term "container" rather than just "tank" to cover any type of container. This terminology is consistent with other terminology used in this rule.

A breakout tank that is used only to relieve surges in an oil pipeline system or to receive and store oil transported by a pipeline for reinjection and continued transportation by pipeline is subject only to DOT jurisdiction. When that same breakout tank is used for other purposes, such as a process tank or as a bulk storage container, it is no longer solely within the definition of breakout tank, and may be subject to EPA or other jurisdiction with the new use. See also the discussion of §112.1( d)( 1)( ii) in the 65 preamble to today's rule. EPA and DOT also signed a joint memorandum dated February 4, 2000, clarifying regulatory jurisdiction on breakout tanks. That memorandum is available to the public upon request. It is also available on our website at http:// www. epa. gov/ oilspill under the "What's New" section.

V 2 Bulk storage container Background: In 1991, we proposed defining the term bulk storage tank to clarify the distinction between facilities regulated by DOT and EPA. The proposed definition was originally for "bulk storage tank."

Comments: We should exclude electrical equipment from the bulk storage tank definition because such equipment does not consume or store oil. (41, 125, 134, 164)

Response: We agree that electrical equipment is not bulk storage, and have revised the definition of bulk storage container to specifically exclude oil filled electrical, operating, or manufacturing equipment. While such equipment is not bulk storage, it is subject to the general requirements of the rule in §112.7.

V 3Bunkered tank Background: We proposed this definition in 1991 to clarify that bunkered tanks are a subset of partially buried tanks, and as such, subject to part 112 as aboveground tanks.

Comments: The definition is "undecipherable and should be rewritten." The definition should be, "Bunkered tank means a partially buried tank, the portion of which lies above grade is covered with earth, sand, gravel, asphalt, or other material." (121)

Response: EPA agrees that the commenter's proposed definition is clearer, and we have used it with a slight editorial change.

Editorial change. We added a sentence to the definition noting that bunkered tanks are a subset of aboveground storage containers for purposes of this part.

V 4 Completely buried tank Background: We proposed in §112.2( v) to define an underground storage tank (UST) as any tank completely covered with earth. We noted that tanks in subterranean vaults, bunkered tanks, or partially buried tanks are aboveground storage containers under part 112. We have editorially changed "underground storage tank" to "completely buried tank" to distinguish those tanks from the "underground storage tank" definition in part 280, which is broader than our definition.

Comments: Consistency with part 280 definition. The part 112 definition of an UST should be consistent with the part 280 definition. (57, 78, 90, 109, 111, 116, 167, 180, 66 182, 187). The differences in the definitions in parts 112 and 280 would confuse the regulated community. (57, 90, 111) We should define an UST as any tank that is completely below grade, and completely covered with earth, including vaults, bunkered tanks, or partially buried tanks. (102, 121) The part 280 UST definition is more consistent with our statutory authority under the Clean Water Act (CWA) than the part 112 definition. (182) Our proposed definition is too narrow, because it includes only completely buried tanks. (67, 72, 102, 106, 133, 175, 182)

New term needed. "Alyeska appreciates that EPA requires a different definition for underground tanks than 40 CFR Part 280. However, it is very confusing for the regulated community to have two different definitions to the term `underground storage tank. ' EPA should identify tanks that it wishes to exclude from SPCC Plan regulations by some other term to avoid this confusion. EPA invites inadvertent non compliance when it uses a term which has two different definitions." (27, 77, 87)

Bunkered tanks, partially buried tanks. We should consider bunkered tanks and partially buried tanks as aboveground storage tanks under part 112. We should regulate a tank under part 112 as an aboveground tank only if it is not regulated under part 280. (190)

Vaulted tanks. "In some locations (e. g., New York City), subterranean vaults are the method of secondary containment specified for underground storage tanks. The vault and tank in such cases are usually completely covered by earth and, thus, pose no threat to the waters of the US. Such tanks should be exempted from the SPCC requirements." (33, 67, 72, 121, 133, 175)

Response: Support for proposal. We appreciate commenter support.

Consistency with part 280 definition. We disagree that the scope of the part 112 exclusion for underground tanks should be consistent with the scope of the definition of "underground storage tank" in part 280. The programs are designed for different purposes, therefore, the definitions used will necessarily differ. To eliminate confusion with the part 280 definition, we have changed the proposed part 112 definition of "underground storage tank" to "completely buried tank" in this final rule.

Part 280 includes within its UST definition tanks which have a volume up to ninety percent above the surface of the ground, which are considered aboveground tanks for part 112 purposes. Part 280 also regulates underground storage tanks containing hazardous substances, while the SPCC program regulates only facilities storing or using oil as defined in CWA section 311. The SPCC program also regulates other types of containers and facilities which part 280 excludes, such as: tanks used for storing heating oil for consumptive use on the premises where stored; certain pipeline complexes where oil is stored; and, oil water separators. 67 Other completely buried tanks excluded from the part 280 UST definition. Tanks in underground rooms or above the floor surface, or in other underground areas such as basements, cellars, mine workings, drifts, shafts, or tunnels are also not considered USTs for purposes of the part 280 definition. The purpose of the part 112 definition is to clarify that these are tanks that are technically underground but that, in a practical sense, are no different from aboveground tanks. They are situated so that, to the same extent as tanks aboveground, physical inspection for leaks is possible. Also, some of these tanks are designed such that in case of a discharge, oil would escape to the environment, a result which our program seeks to prevent.

Editorial changes and clarifications. The words "completely below grade and...." were added to the first sentence of the definition. The purpose of that revision was to distinguish completely buried tanks from partially buried and bunkered tanks, which break the grade of the land, but are not completely below grade. We further clarify that such tanks may be covered not only with earth, but with sand, gravel, asphalt, or other material. The clarification brings the definition into accord with the coverings noted in the definition of "bunkered tank." In the second sentence, the word "subterranean" was deleted from "subterranean vaults" because all vaulted tanks, whether subterranean or aboveground, are counted as aboveground tanks for purposes of this rule.

Bunkered tanks, partially buried tanks. We disagree that vaulted tanks, partially buried tanks, and bunkered tanks should be considered completely buried tanks, and therefore excluded from SPCC provisions. Such tanks may suffer damage caused by differential corrosion of buried and non buried surfaces greater than completely buried tanks, which could cause a discharge as described in §112.1( b).

Vaulted tanks. Aboveground vaulted tanks are clearly ASTs. Subterranean vaulted tanks are also ASTs because they are not completely buried. While subterranean vaulted tanks may be completely below grade, they are not completely covered with earth, sand, gravel, asphalt, or other material. Therefore, because of their design, they pose a threat of discharge into the environment, and are excluded from our definition of completely buried tank. Subterranean vaulted tanks are also excluded from the part 280 UST definition of underground tank if the storage tank is situated upon or above the surface of the floor in an underground area providing enough space for physical inspection of the exterior of the tank. Therefore, if subterranean tanks were excluded from our definition of completely buried tank, they would likely not be regulated at all, and thereby be likely to pose a greater threat to the environment.

V 5 Discharge Background: In proposed §112.2( e), we suggested modification of the definition of discharge to reflect changes in the1978 amendments to the CWA. 68 Comments: Section 402 discharges. We should exclude discharges regulated under CWA section 402 to eliminate duplicative regulations. (67, 125)

Imminent danger. "Recommend that the definition of discharge include that there is at least an eminent danger that the spilled material reach a `navigable waterway'. Otherwise, it is too broad and would cover even spills within secondary containment." (28, 31, 101, 113, 121, 165, L15)

Discharges within secondary containment or the facility. We should define discharge to include a spill, leak, or other release that reaches navigable waters. A spill or leak will not necessarily result in a discharge to navigable waters. (39, 121, L12) The proposed definition seems vague, because it is "unlikely to operationally prevent all spilling or leaking." It is unclear, for example, whether a drop of oil that falls "onto the outside casing of a tank during refilling would be considered a discharge, even if the oil did not reach the ground." The definition is inconsistent with part 112. (115) Our proposed definition appears to "regulate more than the quality of navigable waters." (L12)

Response: Section 402 discharges. We agree that we should not regulate discharges under section 402 of the Act, and in the final rule, we have adopted the proposed definition of a discharge, which accomplishes that aim.

Foreseeable or chronic point source discharges that are permitted under section 402 of the CWA, and that are either due to causes associated with the manufacturing or other commercial activities in which the discharger is engaged or due to the operation of the treatment facilities required by the NPDES permit, are to be regulated under the NPDES program. Other oil discharges in reportable quantities are subject to the requirements of section 311 of the CWA. Such spills or discharges are governed by section 311 even where the discharger holds a valid and effective NPDES permit under CWA section 402. Therefore, a discharge of oil to a publicly owned treatment work (POTW) would not be a discharge under the §112.2 definition if the discharge is in compliance with the provisions of the permit; or resulted from a circumstance identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 402; or if it were a continuous or anticipated intermittent discharge from a point source, identified in a permit or permit application under section 402, which is caused by events occurring within the scope of relevant operating or treatment systems. 33 U. S. C. 1321( a)( 2); 40 CFR 117.12. Otherwise, the discharge is subject to the provisions of section 311 of the CWA as well as the unpermitted discharge prohibition of section 301( a) of the CWA. 33 U. S. C. 1311( a).

Imminent danger. A discharge as described in §112.1( b) need not reach the level of an imminent danger to affected lands, waters, or resources to be a discharge.

Discharges within secondary containment or the facility. We agree that we should define discharge to include a spill, leak, or other release that reaches navigable waters, and have done so. We define a discharge to include any spilling, leaking, pumping, emitting, emptying, or dumping of oil," with certain exclusions pertinent to section 402 69 of the CWA. We also agree that a spill, leak, or other type of discharge will not necessarily result in a discharge to navigable waters. A discharge includes any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of any amount of oil no matter where it occurs. It may not be a reportable discharge under 40 CFR part 110 if oil never escapes the secondary containment at the facility and is promptly cleaned up. If the discharge escapes secondary containment, it may become a discharge as described in §112.1( b), and if that happens, the discharge must then be reported to the National Response Center.

V 6 Facility Background: In §112.2( f) of the 1991 proposal, we proposed to define the term facility based on the definition in the 1971 MOU between EPA and DOT. (See 40 CFR part 112, Appendix A.) We proposed to define a facility as "any mobile or fixed, onshore or offshore building, structure, installation, equipment, pipe, or pipeline used in oil well drilling operations, oil production, oil refining, oil storage, and waste treatment." We noted that the extent of a facility may depend on several site specific factors, including, but not limited to, the ownership or operation of buildings, structures, equipment, and pipelines on the same site and the types of activities at the site.

Comments: Facility boundaries. "The definition of facility are [sic] too broad. Not all buildings on an oil production lease are in contact with oil, nor are all pipeline structures, installations, or equipment. Their operation may in no way affect the possibility of an oil spill, and they should not have to be addressed in a SPCC plan as inclusion in this definition would require. The same is true for waste treatment activities. " (31, 101, 113, 160, 165, 188, L15) "The definition of facility is ambiguous. Is a facility the petroleum storage site, or ... a single tank at a site?" (111, 188)

Pipes and piping. "Rather, the definition contemplates a fixed structure, or unit, which serves a purpose at the place where it is fixed. ... We suggest that EPA clarify the factors which will, rather than may, define the boundaries of a facility, specifically with regard to piping or pipelines which may extend past the physical boundaries of the facility." (188)

Buried pipelines, gathering lines, flowlines, military housing units, waste treatment equipment. "Also, by including oil gathering lines in the facility definition, the size and extent of oil production facilities is multiplied at least a thousand fold. No secondary containment is possible for these lines...." (31) "Based on the proposed definition, it is unclear whether the regulation requires that all oil distribution and movement facilities be identified, such as buried pipelines, for volume storage estimates. This too presents a task which cannot readily be satisfied at many mining operations." (35, 28, 31, 58, 71, 101, 113, 165, L15).

Military housing. We should amend the proposed definition to ensure that part 112 does not cover military housing units. Each such unit may store fuel oil in a 250 gallon tank. (L29) 70 Waste treatment. We should not include the term waste treatment in the part 112 definition of a facility, unless the waste treated is from oil drilling or production operations. (L24, 31)

Electrical or operational equipment. "Clearly, electrical equipment is not used in well drilling operations, oil production, oil refining, oil storage, or waste treatment. As such, oil filled electrical equipment is not a `facility' under the proposed SPCC regulations and not subject to the requirements established therein." (189) Mobile or fixed facilities. "CCIRT is concerned that the proposed definition is overly broad, because it encompasses mobile as well as fixed, structures and equipment. CCIRT considers this expansion of the definition to be inappropriate. ... Conceivably, a SPCC Plan for a mobile `facility' would have to be amended each time the mobile equipment is moved. This is likely to be an unworkable requirement. For these reasons, mobile equipment should not be considered a facility for purposes of SPCC regulations." (188)

Response: We disagree that the definition is too broad. It includes the necessary elements of what may be a "facility." If one of those elements is not related to oil well drilling operations, oil production, oil refining, oil, storage, and waste treatment, or in which oil is used at the site, it is not part of the facility.

Facility boundaries. A facility includes any building, structure, installation, equipment, pipe, or pipeline in oil well drilling operations, oil production, oil refining, oil storage, and waste treatment, or in which oil is used at a site, whether it is mobile or fixed. It may also include power rights of way connected to the facility. We also clarify that a vessel or a public vessel is not a facility or part of a facility. The extent of the facility will vary according to the circumstances of the site. It may be as small as a single container, or as large as all of the structures and buildings on a site. Some specific factors to use in determining the extent of a facility may be the ownership or operation of those buildings, structures, equipment, installations, pipes or pipelines, or the types of activities being carried on at the facility.

Electrical or operational equipment. We disagree with commenters who maintained that electrical equipment "using" oil, as opposed to "storing" it, should not fall within the definition of "facility" in part 112. Section 311( j)( 1)( C) of the CWA, which authorizes EPA to promulgate the SPCC rule, does not distinguish between the storage and the usage of oil. The section simply authorizes EPA, as delegated by the President, to establish "requirements to prevent discharges of oil ... from onshore and offshore facilities, and to contain such discharges...." 33 U. S. C. 1321( j)( 1)( C). Nor do the definitions of "onshore facility" or "offshore facility" in sections 311( a)( 10) of the CWA distinguish between the use or storage of oil. Although the definition of "facility" in section 1001( 9) of the OPA is limited by the "purpose" of the facility, no such limitation appears in CWA section 311. Moreover, EPA believes that although much of the electrical equipment may arguably "use" oil, in effect the oil is "stored" in the equipment because it remains in the equipment for such long time frames. We added language to the definition to clarify that such types of equipment are facilities subject to the SPCC 71 rule whether they are storing or using oil. Therefore, we revised the definition to include the words "or in which oil is used." However, we note that a facility which contains only electrical equipment is not a bulk storage facility.

Buried pipelines, gathering lines, flowlines, military housing units, waste treatment equipment. Buried pipelines that carry oil at mining sites are part of a facility unless they are permanently closed as defined in §112.2. Such pipelines may otherwise be the source of a discharge as described in §112.1( b). Likewise, the same rationale applies to gathering lines and flowlines, military housing units, and waste treatment equipment. Note that any facility or part thereof used exclusively for wastewater treatment and not to satisfy any part 112 requirement is exempted from the rule. The production, recovery, or recycling of oil is not considered wastewater treatment for purposes of the rule. See §112.1( d)( 6).

While such gathering lines, flowlines, and waste treatment equipment are subject to secondary containment requirements, the appropriate method of secondary containment is an engineering question. Double walled piping may be an option, but is not required by these rules. The owner or operator and Professional Engineer certifying the Plan should consider whether pursuant to good engineering practice, double walled piping is the appropriate method of secondary containment according to good engineering practice. In determining whether to install double walled piping versus an alternative method of secondary containment, you could consider such factors as the additional effectiveness of double walled piping in preventing discharges, the technical aspects of cathodically protecting any buried double walled piping system, the cost of installing double walled pipe, and the potential fire and safety hazards of double walled pipes. Earthen or natural structures may be acceptable if they contain and prevent discharges as described in §112.1( b), including containment that prevents discharge of oil through groundwater that might cause a discharge as described in §112.1( b). What is practical for one facility, however, might not work for another.

We also disagree with the argument that because the installation of structures and equipment to prevent discharges around gathering lines and flowlines may not be practicable, EPA will be flooded with contingency plans. First of all, secondary containment may be practicable. In §112.7( c), we list sorbent materials, drainage systems, and other equipment as possible forms of secondary containment systems. We realize that in many cases, secondary containment may not be practicable. If secondary containment is not practicable, you must provide a contingency plan in your SPCC Plan following the provisions of part 109, and otherwise comply with §112.7( d). We have deleted the proposed 1993 provision that would have required you to provide contingency plans as a matter of course to the Regional Administrator. Therefore, you will rarely have to submit a contingency plan to EPA. The contingency plan you do provide in your SPCC Plan when secondary containment is not practicable for flowlines and gathering lines should rely on strong maintenance, corrosion protection, testing, recordkeeping and inspection procedures to prevent and quickly detect discharges from such lines. It should also provide for the quick availability of response equipment. 72 Mobile or fixed facilities. Either mobile or fixed equipment might be the source of a discharge as described in §112.1( b), and therefore both are included within the definition of "facility." Section 112. 3( c) of this rule already provides that it is not necessary to amend your Plan each time a mobile facility moves to a new site.

V 7 Navigable waters Background: In §112.2( g) of the 1991 proposal, we proposed to revise the definition of navigable waters to conform to the definition in 40 CFR part 110.

Comments: Definition too broad, clarification needed. (31, 35, 64, 73, 89, 101, 106, 113, 165, 174, 186, L15, L23) "We have two concerns with this proposal. First, we do not believe EPA should expand its jurisdictional authority since the jurisdiction provided under traditional notions of navigability and contained in the existing regulations is sufficient to protect the Nation's waters from bulk oil contamination. ... Second, under §404 of the Clean Water Act, EPA interprets the predicate jurisdictional trigger, `waters of the United States, ' in an expansive manner to include artificial and isolated wetlands." Wetland delineation is quite complex, and often includes areas that are not adjacent to navigable waters, nor even tributary or in any connected to navigable waters." (35) "We feel that compliance with these regulations could be more easily obtained if this definition was simplified." (94, 111, 166) "Using this interpretation, nearly all facilities would be located less than 500 feet from navigable waters. Some guidance as to the correct interpretation of this issue would be helpful." (107, 79, 167, 186, L17)

Navigability. "The definition of navigable waters should be revised to match what Congress originally intended  waters that a boat of some kind (even a canoe) can travel on at all times of the year." (31, 73, 101, 106, 113, 165, L15) "Navigable Waters is defined in extremely broad terms under the proposed definition. While broad statutory references are made elsewhere in the proposed rule, no specific authority, legislative or judicial, is cited or identified to support this expansive definition." (64)

Risk. "The EPA's emphasis in this phase of the SPCC revisions should be on controlling discharges from facilities with the greatest potential to discharge harmful quantities of oil to navigable waters. The broad applicability of the proposed SPCC revisions will overwhelm the regulated community." (167) "The proposed rule's mention of discharges into or upon the navigable waters of the United States together with the extremely broad interpretation of `navigable waters' and waters which flow to `navigable waters' could result in application of this rule to inland agricultural operations." (L23)

Tributaries. Asks, "...( A) re ditches which flow miles to navigable waters considered tributaries?" (62) "Since the EPA considers tributaries to navigable water (i. e., rivers) as part of this definition, ultimately any size stream, including those which may be only intermittent, would be subject to this rule." (89) We 73 should define navigable waters as "unobstructed streams that free flow at least fourteen consecutive days per year." (186)

Criteria. The definition should "include specific criteria such as flow volume." (89, 156)

Maps. "Due to the broad definition of navigable waters, how is an operator to determine what is navigable water? Because this is such a confusing issue, an operator is at a loss to determine which facilities could reasonably be expected to discharge oil upon a navigable water. Will the EPA provide maps to aid in this determination?" (28, 69, 79, 101)

Groundwater. "...( C) ongress intended for EPA to develop SPCC requirements that prevent releases to groundwater, in addition to requirements that prevent releases to navigable waters. Thus, SPCC regulations should be rewritten to prevent discharges to groundwater in addition to discharges to navigable waters. ... At a minimum, proposed section 112.1( d)( 1)( i) should contain language stating that clear hydrologic connections between groundwater underlying a facility and navigable waters require a facility to develop and implement an SPCC Plan." (44)

Response: Clarification of the meaning of navigable waters, maps. In this definition, we clarify what we mean by navigable waters by describing the characteristics of navigable waters and by listing examples of navigable waters. We also note in the definition that certain waste treatment systems are not navigable waters.

Navigability, legal authority. Navigable waters are not only waters on which a craft may be sailed. Navigable waters include all waters with a past, present, or possible future use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide. Navigable waters also include intrastate waters which could affect interstate or foreign commerce. The case law supports a broad definition of navigable waters, such as the one published today, and that definition does not necessarily depend on navigability in fact.

Tributaries. For the reasons stated above, tributaries or intermittent streams are included in the definition of navigable waters, and it would therefore be inappropriate to limit the definition to unobstructed streams that free flow at least fourteen consecutive days a year.

Maps. We are unable to provide a map to identify all navigable waters because not all such waters have been identified on a map. However, the rule provides guidelines as to where such waters may be found.

Groundwater. EPA agrees with the commenter that groundwater underlying a facility that is directly connected hydrologically to navigable waters or adjoining shorelines could trigger the requirement to produce an SPCC Plan based on geographic or locational aspects of the facility. 74 V 8 Offshore facility Background: In 1991, we proposed to revise the definition of offshore facility to conform with the CWA definition in section 311( a)( 11) and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) definition in 40 CFR 300.5.

Comments: CWA definition. "Offshore Facility is defined in an ambiguous and circuitous manner in the proposed rules. Midway through the proposed definition, the unnecessarily redundant phrase `and any facility of any kind that is subject to the jurisdiction of the United States and is located in, on, or under any other waters' is included. The definition in the CWA is better and clearer." (64)

EPA or DOI jurisdiction. "We note that if the definition of `offshore facility' in section 1001( 22) of OPA 90 is taken in context with the definition of `navigable waters' proposed for 40 CFR 112. 2( g), the jurisdiction for many facilities (including large numbers which have traditionally been subject to EPA jurisdiction) would be transferred to the Department of Interior (DOI) by E. O. 12777." (128)

Response: CWA definition. EPA agrees with the commenter urging that the EPA definition track the statutory definition. The part 112 definition, except for minor editorial changes, is identical to the CWA definition. There is no difference between the substance of the part 112 definition and the CWA definition.

EPA or DOI jurisdiction. The 1994 Memorandum of Understanding between DOI, DOT, and EPA addresses the jurisdictional issue to which the commenter refers, transferring to EPA those non transportation related offshore facilities landward of the coast line.

V 9 Oil Background: In current §112.2 we define oil as "oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil." We proposed no changes in the definition in 1991. However, in the 1991 preamble, we explained this definition includes crude oil and refined petroleum products, as well as non petroleum oils (e. g., animal and vegetable oils). We solicited comments on the appropriateness of this approach.

Comments: Support for proposal. (82, 121, 168, L8) "Section 311 of the CWA is unusual, in that it is the only section of the Act that has its own definition section. These definitions include one for oil. It is the same definition as the one presently appearing in part 112. There is nothing in section 311( j)( 1)( C) that indicates that Congress contemplated a departure from this oil definition for prevention regulations. EPA must stick with the present definition of oil. As a matter of fact, a vegetable oil spill resulted in a significant duck kill on the upper Mississippi in the 1960's." (121)

Opposition to proposal. Our expanded interpretation of what constitutes oil will subject many more facilities to the SPCC Plan preparation requirements, or compel many facility 75 owners or operators to revise existing Plans. It is too broad. (89, 155, 184, 189) We should present our definition for public comment. (190)

Petroleum products only. "The inclusion of refined petroleum in this interpretation includes a broad category of materials that do not necessarily fall within the original intent of Congress.... Releases from the storage of many of these chemicals and materials are currently regulated by other EPA programs, such as those found in CERCLA Section 304 and SARA Title III." (89) "No mention is made in the Clean Water Act, 40 CFR Part 110, or the Deep Water Port Act to vegetable oil." EPA should "( L) imit the definition of oil to petroleumbased crude oil and derivative products as intended by the Clean Water Act." (110)

Other Federal and State rules. "PG& E believes that this definition sweeps too broadly and is inconsistent with parallel federal and state regulations which regulate the use, containment, and discharge of oil and petroleum products. .. PG& E encourages EPA to adopt the UST definition of petroleum as it applies to the preparation of SPCC plans." (78, 111, 125, 184)

Specific substances. We should include in our definition of oil, examples of the materials covered under part 112. (62, 103, 156) Asks that we explicitly state the types of products regulated under part 112 so that State and local regulatory agencies do not make arbitrary and capricious interpretations. (189) "Clarification of the definition of `oil' is recommended. ... Considerable confusion on the definition of oil still exists." (190, L7)

Asphalt cement. We should clarify whether our definition includes asphalt cement and other oil containing products that are not liquid at ambient temperature. (76)

Viscosity. "There is no provision or consideration of the potential of the stored material to spill off site. For example, `petroleum' includes lubricating materials and asphalt cement which are highly viscous and could not flow very far if a tank or valve is damaged or vandalized. The potential for harm to any person, property or the environment is extremely limited." (125, 149)

Chemicals and solvents. We should change the definition to include "chemicals and solvents that are stored in bulk in tanks in a manner similar to oils and (that) may cause comparable water pollution problems if discharged in harmful quantities as defined under 40 CFR Part 110." (9)

Aromatic hydrocarbons. Asks whether "aromatic hydrocarbons and/ or subsequent derivatives" are considered oil. "Dow does not believe that it is EPA's intent to regulate such materials under 40 CFR Part 112." (L7). 76 Gasoline and diesel fuel. "The definition of oil should exclude gasoline and diesel fuel. The high volatility of diesel fuel and gasoline results in rapid evaporation of spilled fuel, thereby reducing the pollution potential of the substance." (128)

Hydrophobic materials. "Are hydrophobic materials of low molecular weight and high vapor pressure exempt  they would not impact water quality (ie. [sic] tanks of propane)." (62)

Mineral oil.

Legislative intent. "The Agency should limit the definition of `oil' to petroleum and petroleum refinery products and exclude mineral oils and oils with a pour point above 60 degrees Fahrenheit from that definition." (125)

Toxicity. We should exclude dielectric fluids from part 112 because they are used operationally in electrical equipment and have "more favorable toxicity characteristics" than most petroleum refinery products. (98, 125, 184)

Mixtures.

Bilge water. "In short, bilge water is not the same as oil. Accordingly, your regulation should expressly exclude bilge water from the same stringent requirements as are imposed upon oil spillage." (45)

Brine and other substances. "The definition of oil does not refer to substances mixed with oil. A clarification must be made as to whether the proposed rules are intending to regulate just the handling of oil or the handling of oil and oil mixed with any other substance (e. g., brine tanks)" (154)

Hazardous substances. "Are other hazardous substances potentially regulated by this statute (are) specifically exempt from SPCC requirements." (162)

Volume, less than 10% oil. "GM believes the definition of `oil' should be amended to exclude solutions of materials containing low concentrations of oil, e. g., less than 10% by volume. Oil solutions of low concentration, if released, do not pose as great of a risk to the environment, as compared to concentrated oil solutions or compounds." (90)

Non petroleum oils. 77 Include. "The definition of `oil' should specifically include non petroleum oils, such as animal and vegetable oils. These oils pose many of the same hazards in a spill situation as do the petroleum oils...." (27, 123)

Exclude. "...( N) on petroleum based oils such as animal and vegetable fats and soils should be exempt from all oil 40 CFR 112 requirements." (56, 162) "It would make more sense to exclude animal/ vegetable oils and include petroleum products such as solvents which pose a much greater threat to the environment...." (L17, L26)

Petroleum and its derivatives.

Crude oil. We should define crude oil in part 112 "so that refined products such as diesel fuel and gasoline may be distinguished from unrefined crude oil." We should define crude oil as "an unrefined mixture of naturally occurring hydrocarbons produced from a well that is a liquid at a standard temperature of 60 degrees Fahrenheit and 14.73 psia." (58)

Petrochemicals.

Exclude. "For example, EPA should specify (with examples) that petrochemicals, such as xylene, are not included in the definition of `oil'." (103)

Include. We should include only crude oil and refined petroleum products in our definition of oil. (66) Because we already regulate refined petroleum materials under other EPA programs (e. g., CERCLA Section 304, SARA Title III, RCRA Subtitles C and D), a broad definition of oil "will confuse industries about regulatory compliance and interdepartmental Agency responsibilities." (89) We should include only petroleum and "petroleum refinery products." (125, 189)

Differentiate. "The term `refined petroleum products' ... needs sharpening. Not only are substances like fuel oil or diesel fuel or lubricating oils `refined petroleum products, ' but so are other substances which clearly are not oil like such as ethylene/ polyethelene, propylene/ polypropylene, styrene/ polystyrene which are ... clearly not oil like." (L26)

Solid and gaseous oils. "We believe that those `oils' which are solids at ambient temperatures should not fall within the scope of this rulemaking. Such `oils' will not pose the same kind of water pollution `problem' as `true oils' and should be addressed separately." (33, 101, 102, 113)

Synthetic oils. 78 Exclude. "As synthetic products, such liquids do not `fit EPA's definition of `oil' nor are they specifically addressed under the CWA. ... EPA should, instead, specifically exempt `synthetic oils and similar oil like liquids' that do not fit its `definition' of `oil' ...." (33) "Similarly, mineral oil dielectric fluids should be excluded because they too have low toxicity and are used operationally, even though they are petroleum based." (98, 125, 156)

Transformer oil. If we decide to change the current definition, we should add transformer oil to the list of examples. (168)

Used and waste oil. "The definition should be expanded to included [sic] used oils or the waste forms of all subject materials." (87)

Vegetable oils, animal fats. Differences from petroleum oils.

Clarification needed. Asks us to clarify whether vegetable and mineral oils are covered under part 112. (139)

Exclude from rule. "ACMS believes that edible oils should not be governed by the OPA rulemaking." "The EPA should consider not applying these rules to the handling and storage of animal fats and oils, particularly those which are miscible in water." (51, 56, 137, 143)

Differences. "The physical characteristics of vegetable oils such as corn oil are so markedly different that reliance on a narrow technical reading of the term `oil' is not credible." (37, 114, 137, 156, 175) "Edible oils do not create a hydrocarbon `sheen' on water surfaces as do petroleum oils. ... Edible oils are very biodegradable and present a negligible environmental threat to aquatic and animal life unless spilled in very large amounts in under unique circumstances. ... One option EPA should consider is providing needed flexibility in the SPCC rules would be to apply them as guidelines where specifically applicable to the edible oils industry." (137, 157) "The Department believes that EPA should consider developing regulations that respond to the types of oil that may be included within a facility." (175)

Legislative intent. "... BHP believes that the Agency is making an unreasonable extension of the definition of oil to include such substances." (42, 56)

Risk. "Unlike petroleum products, vegetable oils: are rapidly and completely biodegradable; pose no risk to human health if spilled in drinking water sources; are not flammable; are easily handled by POTWs. The only detrimental environmental impact from a major spill of vegetable oil would be temporary oxygen depletion in surface waters and its attendant effect on fish." (56, 137, 157). 79 State law (California). "We do not consider animal and vegetable oils to be subject to our oil pollution statutes. This difference is not fatal to our regulatory process as long as the states continue to have the flexibility of planning and regulating in this area without preemption." (193)

Risk to the environment. Our failure to distinguish between oils based on potential to cause harm to the environment subjects owners or operators to unwarranted costs. (184) We should recognize that for different types of oils, the quantity necessary to cause irreversible environmental damage is different. (L2)

Response: Support for proposal. We appreciate the commenters' support. We disagree that the definition of oil will subject additional facilities to SPCC requirements, and currently covered facilities to additional requirements. The definition does not expand what is oil, it merely clarifies which substances are included.

Authority. We disagree that our authority only extends to petroleum based oils. Our interpretation is consistent with Congressional intent as expressed in section 311( a)( 1) of the CWA, which extends to all types of oils in any form. EPA's definition tracks that statutory definition. Our revised definition also reflects EORRA requirements for differentiation. EORRA did not expand or contract the universe of substances that are oils, it only required differentiation, when necessary, between the requirements for facilities storing or using different types of oil.

What is oil. EPA interprets the definition of oil to include all types of oil, in whatever form, solid or liquid. That includes synthetic oils, mineral oils, vegetable oils, animal fats, petroleum derivatives, oil refuse, oil mixed with wastes other than dredged spoil, etc. We do not regulate products similar to oil (for examples, non oil chemicals), but only oil under part 112. A definition based on liquidity would exclude solid oils, such as certain animal fats, a result that would be inconsistent with Congressional intent. Concerning gaseous oils, see our discussion on Highly volatile liquids in the preamble to today's rule.

Specific substances.

Aromatic hydrocarbons. Aromatic hydrocarbons may or may not be oil, depending on their physical characteristics and environmental effects. Some aromatic hydrocarbons are hazardous substances.

Asphalt cement. As to certain specific substances, asphaltic cement is oil because it is a petroleum based product and exhibits oil like characteristics. A discharge of asphaltic cement may violate applicable water quality standards, or cause a film or sheen or discoloration of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines. 80 Bilge water. Bilge water that contains sufficient oil such that its discharge would violate the standards set out in 40 CFR 110.3 is considered oil. The percentage of oil concentration in the water is not determinative for the purpose of the definition or the discharge standards.

Crude oil. We did not propose a definition of the term crude oil in part 112, nor do we use it, except as an example of a discharge that may occur at an onshore drilling and workover facility (see §112. 10( c)). Therefore, we cannot finalize such a definition.

Highly volatile liquids. We do not consider highly volatile liquids that volatilize on contact with air or water, such as liquid natural gas, or liquid petroleum gas, to be oil. Such substances do not violate applicable water quality standards, do not cause a reportable film or sheen or discoloration upon the surface of water or adjoining shorelines, do not cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, and are not removable. Therefore, there would be no reportable discharge as described in 40 CFR 110.3.

Mixtures. Oil means oil of any kind or in any form, including, but not limited to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.

Other Federal and State rules. While our definition may differ from other Federal rules, it is necessary to implement the purposes of the CWA.

RCRA. Although releases or discharges of some refined petroleum products may be regulated under the Solid Waste Disposal Act as waste products, that program is dedicated more to waste management, and does not regulate storage of nonwaste oil. The definition of petroleum in 40 CFR part 280 is a subset of the part 112 definition of "oil." The part 112 definition of oil is broader than the part 280 definition of petroleum because part 112 regulates all types of oils, whereas part 280 regulates only petroleum.

State rules. While States may choose to regulate all oils or some oils, the CWA definition is designed to prevent the discharge of all oils.

Public comment. In response to the recommendation that we present our definition for public comment, we agree. We did so in 1991 by publishing the proposed rule in the Federal Register.

Risk to the environment. We disagree that in the definition of oil we should distinguish between oils by degree of risk or percentage of oil concentration. The risk or percentage of oil concentration does not change the fact that the substance is still oil and may harm the environment if discharged into it. We likewise disagree that we 81 should distinguish between oils by degree of risk for definitional purposes. The risk does not change the fact that the substance is still oil and may harm the environment if discharged into it. Finally, we disagree that we should exclude from the definition oil based on pour point, propensity to migrate off site, or viscosity factors. Any oil discharged to the environment may cause harm that the rule is designed to prevent.

All oils, including animal fats and vegetable oils, can harm the environment in many ways. Oil can coat the feathers of birds, the fur of mammals and cause drowning and hypothermia and increased vulnerability to starvation and predators from lack of mobility.

Oils can act on the epithelial tissue of fish, accumulate on gills, and prevent respiration. The oil coating of surface waters can interfere with natural processes, oxygen diffusion/ reaeration and photosynthesis. Organisms and algae coated with oil may settle to the bottom with suspended solids along with other oily substances that can destroy benthic organisms and interfere with spawning areas.

Oils can increase biological or chemical oxygen demand and deplete the water of oxygen sufficiently to kill fish and other aquatic organisms.

Oils can cause starvation of fish and wildlife by coating food and depleting the food supply. Animals that ingest large amounts of oil through contaminated food or preening themselves may die as a result of the ingested oil. Animals can also starve because of increased energy demands needed to maintain body temperature when they are coated with oil.

Oils can exert a direct toxic action on fish, wildlife, or their food supply. Oils can taint the flavor of fish for human consumption and cause intestinal lesions in fish from laxative properties. Tainted flavor of fish for human consumption may indicate a disease in the fish which could render them inedible and thus have a substantial impact on the fishermen who harvest them and communities who may rely on them for a food supply.

Oils can foul shorelines and beaches. Oil discharges can create rancid odors. Rancid odors may cause both health impacts and environmental impacts. For example, the 1991 Wisconsin Butter Fire and Spill resulted in a discharge of melted butter and lard. After the cleanup was largely completed, the Wisconsin Department of Natural Resources declared as hazardous substances the thousands of gallons of melted butter that ran offsite and the mountain of damaged and charred meat products spoiling in the hot sun and creating objectionable odors. The Wisconsin DNR stated that these products posed an imminent threat to human health and the environment. 62 FR 54526.

Our revised definition also reflects EORRA requirements for differentiation. EORRA did not expand or contract the universe of substances that are oils, it only required differentiation, when necessary, between the requirements for facilities storing or using 82 different types of oil. Because at the present time EPA has not proposed differentiated SPCC requirements for public notice and comment, the requirements for facilities storing or using all classes of oil will remain the same. However, we have published an advance notice of proposed rulemaking seeking comments on how we might differentiate among the requirements for the facilities storing or using various classes of oil. 64 FR 17227, April 8, 1999. If after considering these comments, there is adequate justification for differentiation among the requirements for those facilities, we will propose rule changes.

V 10Partially buried tank Background: In 1991, we proposed to define a partially buried tank to clarify the distinction between such a tank and a UST. We proposed to define a partially buried tank as a storage tank that is partially inserted or constructed in the ground, but not fully covered with earth. We have renamed underground tanks in this rule as "completely buried tanks," i. e., those tanks completely covered with earth. A partially buried tank is an aboveground container for purposes of the part 112.

Comments: The definition as proposed is "undecipherable" and should be rewritten. Suggests another definition for clarity. (121) We should adopt the part 280 UST definition for partially buried tank, which includes any tank system such as tank and piping which has a volume of 10 percent or more beneath the surface of the ground. (90, 180) Asks whether partially buried tanks will be subject to both parts 112 and 280, and if not, whether part 112 provides adequate regulation of leaks to the ground. (L17)

Response: We agree that the definition could be clearer and have clarified it. We decline to adopt the part 280 UST definition (at 40 CFR 280.12) and to classify partially buried tanks as completely buried tanks, because they are not. The UST definition might also exclude some tanks or containers which would be covered by the SPCC definition. The UST definition includes tanks whose volume (including the volume of underground pipes connected thereto) are 10 percent or more beneath the surface of the ground. The SPCC definition of "partially buried tank" contains no volume percentage and applies to any tank that is partially inserted or constructed in the ground, but not entirely below grade, and not completely covered with earth. Therefore, some partially buried tanks will continue to be subject to both parts 112 and 280.

We clarify that partially buried tanks may be covered not only with earth, but with sand, gravel, asphalt, or other material. The clarification brings the definition into accord with the coverings noted in the definition of "bunkered tank." We added a sentence to the definition noting that partially buried tanks are considered aboveground storage containers for purposes of this part.

V 11Permanently closed (See also section IV. C of this document)

Background: In 1991, in §112.2( o), we proposed to define the term permanently closed to clarify whether facilities and tanks are excluded from part 112. In 83 §112.2( o)( 1), we proposed to define permanently closed as a tank and its connecting lines or a facility from which an owner or operator has removed all liquid and sludge, disposing of removed waste products in accordance with all applicable State and Federal requirements. Proposed §112.2( o)( 2) would have provided that to call a tank or facility permanently closed, an owner or operator must have tested the tank for and rendered the tank free from explosive vapor, using a combustible gas indicator, explosimeter, or other type of atmospheric monitoring instrument to determine the lower explosive limit (LEL). The proposed definition further would have provided that tank vapors must remain below the LEL, as defined by EPA and the Occupational Safety and Health Administration (OSHA). Proposed §112.2( o)( 3) would require blanking off all connecting lines, closing and locking valves, and posting signs warning that the tank is permanently closed and that there are no vapors above the lower explosive limit.

Comments: Support for definition. "The inclusion of a definition of a `permanently closed tank' is helpful." (27).

Opposition to definition. "It is recommended that the concept of `permanently closed' tanks be removed from the SPCC regulations. If a tank is not used for the storage of oil, it is simply not subject to the provisions of the SPCC regulations." (42, 67, 85, 86, 110, 125, 175) We should include in the term permanently closed those tanks without oil and with all connections severed. (101, 125, 165, 170, L2, L15) If our primary goal is to protect navigable waters, our definition of permanently closed is too stringent. (75, 86, 125, 155, 167, 170)

Other substances. Our definition should include tanks that have been permanently closed and then loaded with liquid other than oil. (51)

Regulatory criteria. "It is important that the Agency separate permanently closed tanks from regulated tanks and make the criteria easy to observe during SPCC inspections." (168, 190)

Connecting lines. Support the proposed provision in the permanently closed definition to blank off all connecting lines. However, we should require that owners or operators blank off all connecting lines at both ends. (27, L12) We are overreaching our authority by requiring lines to be blanked off. (58) Asks that we clarify the term connecting lines. Assumes that we mean the sections of pipe that run between the tank and the nearest block valve. (67, 96, 102)

Cost. It would be expensive to eventually close tanks currently in operation because owners or operators will have to pay for explosivity detection services, determination of LEL, placarding tanks, and waste disposal. (28, 31, 165)

Decommissioned tanks. "The definition should include tanks which have been decommissioned in this manner. ... If the decommissioning procedure follows that prescribed by the procedure in the currently proposed `permanently closed' definition, a decommissioned tank no longer poses a threat of oil pollution." (L12) 84 Explosive vapors. "... (P) rovisions relating to combustible vapors or dust clearly fall outside the scope of the Clean Water Act." (42, 58, 67, 71, 75, 95, 102, 110, 125, 155, 167, 170, 175, L12) EPA should eliminate the 25% LEL because it is "NOT universally acceptable to OSHA." (33) Rather than render each tank free of explosive vapor, owners or operators should maintain tanks below the LEL for the tank's material. (33) Vapor testing for small tanks is excessive and should be necessary only for a tank with a capacity greater than 42,000 gallons or 1,000 barrels. (113) It would be difficult or impossible to remove all vapors, and we should delete this element from the permanently closed definition. (L2) Detection services would be too expensive. (L15)

Signs. The proposed requirement to post a sign on permanently closed tanks is beyond the scope of our CWA authority. (58) "Additionally, the placement of a sign on a tank indicating that it has been gas freed is not a good safety practice. This could lead an inexperienced worker to believe that confined space entry without additional testing of the atmosphere within the tank is acceptable. This cold also apply to someone initiating hot work, such as welding or cutting, on the tank. If gases were to build up within the tank after the initial gas freeing procedure for some unexpected reason, a sign, such as that proposed, could have catastrophic results while providing no benefit." (67, 86, 102, 110, 175, L2)

Retroactive enforcement. "The definition of `permanently closed' should not be applied retroactively to tanks that have been abandoned prior to adoption of this definition." Such tanks, in most instances, have been abandoned and empty for many years and pose no threat of an oil spill. It would be a severe economic burden to require that operators perform the proposed procedures on such a wide universe of tanks." The commenters did not provide specific cost estimates. (28, 31, 37, 101, 113, 165, L15)

Scope of rule. The provisions to regulate permanently closed tanks are unclear. Asks whether we proposed to exclude permanently closed tanks from all of 40 CFR part 112. (84) Part 112 technical requirements should not apply to permanently closed tanks. (102)

Temporarily closed tanks. Suggests "temporarily closed" definition." Temporary tanks should be excluded from the definition "provided the operator can show that the tanks have been shut in and all fluid removed down to the pipeline connection." (71, L2, L12)

Waste disposal.

Authority. "USEPA does appear to be within its statutory authority to require removal of all liquid and sludge from a permanently closed tank since, conceivably, such liquid or sludge, if released, could cause a discharge of oil in harmful quantities into a navigable water." (58)

Opposition to proposal. 85 Other programs. "Waste disposal is covered under other programs and should not be a consideration for spill prevention unless flowable oil is part of the waste." (28, 31, 42, 101, 110, 165, 167, L15)

Unnecessary. The definition is a "surreptitious means of inserting regulations with the definition section of 40 CFR part 112. ... (D) isposition of tank contents has nothing to do with the definition of a tank." (110)

Sludge removal. "A small amount of sludge left on the bottom of the tank should not prevent it from being classified as empty." (75) "` Permanently closed' should not require the total removal of sludge unless the sludge is free flowing, provided that the provision for meeting explosive vapors can be met. It has been our experience that it can be very difficult to remove old sludge from #6 fuel oil tanks. It appears that the only way of removing the sludge is to dismantle the tank." (161)

Response: Support for proposal. We appreciate commenter support. A definition is necessary to clarify when a container is permanently closed and no longer used for the storage of oil. Containers that are only closed temporarily may be returned to storage purposes and thus may present a threat of discharge. Therefore, they will continue to be subject to the rule.

Connecting lines. We agree with the commenter's assumed definition of connecting lines. Connecting lines that have been emptied of oil, and have been disconnected and blanked off, are considered permanently closed.

Cost. We have deleted the proposed requirements to render the container free of explosive vapor by testing to determine the LEL. We have also deleted all references to waste disposal. The sign noting that a container is permanently closed (with date of closure) should be relatively inexpensive.

Decommissioned tanks. If "decommissioning" refers to the criteria for permanent closing of a container, then there is no need to include such terminology in the definition because permanent closure will include such tanks. Otherwise, the containers are not permanently closed and should not be included.

Explosive vapors. We deleted proposed §112.2( o)( 2) on the suggestion of commenters that references to explosive vapors are an OSHA matter and inappropriate for EPA rules. We modified proposed §112.2( o)( 3) to eliminate the reference to signs warning that "vapors above the LEL are not present," because the operator cannot guarantee that warning remains correct. To help prevent a buildup of explosive vapors, we have revised the definition to provide that ventilation valves need not be closed. We agree with commenters that a sign might be misleading and dangerous. 86 Non oil products. Containers that store products other than oil and never store oil, are not subject to the SPCC rule whether they are "permanently closed" as defined or not. If the containers sometimes store oil and sometimes store non oil products, they are subject to the rule.

Retroactive enforcement. We believe that containers that have been permanently closed according to the standards prescribed in the rule qualify for the designation of "permanently closed," whether they have been closed before or after the effective date of the rule. Containers that cannot meet the standards prescribed in the rule will not qualify as permanently closed. We disagree that the cost of such closure is prohibitive. We have simplified the proposal by deleting the proposed requirement to render the tank free of explosive vapor. Therefore, costs are lower. To clarify when a container has been closed, we have amended the rule to require that the sign noting closure show the date of such closure. The date of such closure must be noted whether it occurred before or after the effective date of this provision. Some States and localities require a permit for tank closure. A document noting a State closure inspection may serve as evidence of container closure if it is dated.

Scope of rule. The exemption for a permanently closed container or facility applies to all of part 112.

Waste disposal. Reference to waste disposal in accordance with Federal and State rules in proposed §112.2( o) was deleted as unnecessary surplus. EPA agrees that other programs adequately handle waste disposal.

V 12 Person Background: In the 1991 proposal, we proposed to include a definition of person that was substantively unchanged from the current rule.

Comments: "EPA should either modify its regulatory definition of person, or make clear that the United States is bound by every provision of these regulations for any failure to comply." (35)

Response: See the discussion under §112.1( c) for the applicability of the rule to Federal agencies and facilities.

V 13 Production facility Background: The definition of "production facility" replaces two definitions in the proposed rule, i. e., Oil drilling, production, or workover facilities (offshore), proposed §112.2( j), and Oil production facilities (onshore), proposed §112.2( k). We replaced the two proposed definitions with the revised definition for editorial brevity as the proposed definitions contained many identical elements. This editorial effort effects no substantive changes in the requirements for the particular types of production facilities. 87 Each facility must follow the requirements applicable to that facility, which is generally based on its operations, for example, a workover facility.

Comments: Editorial change. "The proposed regulations contain new definitions for oil production facilities (onshore) and oil production facilities (offshore). These definitions should be replaced by a single definition of `production facility' that is identical to that found in 49 CFR §195.2. ... EPA should not develop new definitions for terms already defined in existing regulations that would result in wide spread confusion among the regulated community." (95, 102) We should include a definition for onshore drilling and workover facilities. The proposed definitions of the terms oil production facility (onshore) and oil production facility (offshore) are ambiguous, because of inclusion of the phrase, "may include." (154)

Flowlines, gathering lines, wells and separators. "Oil production facilities should not include wells, flow lines, gathering lines or separators." (101, 165) "These pipelines (gathering lines) have never been subject to such (SPCC) requirements. They are truly transportation lines subject to Department of Transportation regulations." (71) "The term should also exclude oil gathering lines since it is virtually impossible to comply with certain provisions of the regulation without excessive and unrealistic expense. How, for example would an operator provide the necessary containment for his gathering lines pursuant to section 112.7( c)?" (113)

Natural gas processing operations.

Applicability of rules. "IPAA recommends clarification of the definition of `oil production facilities' at 40 C. F. R. §112. 2 to ensure that natural gas processing operations are treated as oil production facilities under the rules. That clarification should ensure the appropriate level of regulation for those related facilities and avoid inadvertent application of requirements designed for larger refining and marketing facilities to natural gas processing." (31, 86, L12)

Risk. "After 20 years of SPCC regulation of E& P operated natural gas processing facilities, there is no evidence that demonstrates that these facilities have a different or higher risk of causing oil spill pollution of navigable waters. Therefore, the oil pollution requirements should not be different than those for other E& P facilities." (L12)

Single geographical oil or gas field, single operator. "The inclusion of the phrases `in a single geographical oil or gas field' and `operated by a single operator' in this definition is confounding. The producing segment of the industry in some cases needs to be able to combine facilities into one SPCC plan with an identification of the wells to which that plan applies. We question whether the inclusion of the word `single' would preclude an operator's ability to do so." (167)

Response: Editorial change. DOT definition. We changed the proposed definition to be more consistent with the DOT definition, found at 49 CFR 195.2, in response to a 88 commenter who urged consistency in EPA and DOT definitions. We added the uses of the piping and equipment detailed in the DOT rule to our proposal, for example, "production, extraction, recovery, lifting, stabilization, separation, or treating" of oil. The terms "separation equipment," used in the proposed definition of "oil production facilities (onshore)", and "workover equipment," used in the proposed definition of "oil drilling, production, or workover facilities (offshore)", were combined into a generic "equipment." However, we also modified the proposed definition to reflect EPA jurisdiction. We added the word "structure," which was not in the DOT definition, to cover necessary parts of a production facility. We also added examples of types of piping, structures, and equipment. These examples are not an exclusive list of the possible piping, structures, or equipment covered under the definition. The new definition encompasses all those facilities that would have been covered under both former proposed definitions. As we proposed in 1991, and as in the current rule, we have retained geographic and ownership limitations.

Editorial change. We have eliminated the potential ambiguity caused by the words may include by substituting the word means.

Flowlines, gathering lines, wells and separators. EPA disagrees that flowlines and gathering lines, as well as wells and separators, should be excluded from the definition. These structures or equipment are integral parts of production facilities and should therefore be included in the definition. We also disagree with the argument that because the installation of structures and equipment to prevent discharges around gathering lines and flowlines may not be practicable, EPA will be flooded with contingency plans. First of all, secondary containment may be practicable. In §112.7( c), we list sorbent materials, drainage systems, and other equipment as possible forms of secondary containment systems. We realize that in many cases, secondary containment may not be practicable. If secondary containment is not practicable, you must provide a contingency plan in your SPCC Plan following the provisions of part 109, and otherwise comply with §112.7( d). We have deleted the proposed 1993 provision that would have required you to provide contingency plans as a matter of course to the Regional Administrator. Therefore, you will rarely have to submit a contingency plan to EPA. The contingency plan you do provide in your SPCC Plan when secondary containment is not practicable for flowlines and gathering lines should rely on strong maintenance, corrosion protection, testing, recordkeeping and inspection procedures to prevent and quickly detect discharges from such lines. It should also provide for the quick availability of response equipment.

Natural gas processing operations. Because natural gas is not oil, natural gas facilities that do not store or use oil are not covered by this rule. However, you should note, that drip or condensate from natural gas production is an oil. The storage of such drip or condensate must be included in the calculation of oil stored or used at the facility.

Single geographical oil or gas field, single operator. 89 Single geographical oil or gas field. The phrase "a single geographical oil or gas field," may consist of one or more natural formations containing oil. The determination of its boundaries is area specific. Such formation may underlie one or many facilities, regardless of whether any natural or man made physical geographical barriers on the surface intervene such as a mountain range, river, or a road.