[Federal Register: December 5, 2008 (Volume 73, Number 235)]
[Rules and Regulations]
[Page 74235-74323]
[DOCID:fr05de08-15]

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Part II

Environmental Protection Agency

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40 CFR Part 112

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8746-3]
RIN 2050-AG16

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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
amending the Spill Prevention, Control, and Countermeasure (SPCC) rule
in order to provide increased clarity, to tailor requirements to
particular industry sectors, and to streamline certain requirements for
those facility owners or operators subject to the rule, which should
result in greater protection to human health and the environment.
Specifically, this final rule: Exempts hot-mix asphalt (HMA), pesticide
application equipment and related mix containers, and heating oil
containers at single-family residences from the SPCC rule; amends the
definition of ``facility'' to clarify the existing flexibility
associated with describing a facility's boundaries; amends the facility
diagram requirement to provide additional flexibility; defines
``loading/unloading rack'' to clarify the equipment subject to the
provisions for facility tank car and tank truck loading/unloading
racks, as well as amends the provisions for this equipment; provides
streamlined requirements for a subset of qualified facilities; amends
the general secondary containment requirement to provide more clarity;
exempts non-transportation-related tank trucks from the sized secondary
containment requirements; amends the security requirements; amends the
integrity testing requirements to allow greater flexibility in the use
of industry standards; amends the integrity testing requirements for
containers that store animal fats or vegetable oils and meet certain
criteria; streamlines a number of requirements for onshore oil
production facilities; and exempts underground oil storage tanks at
nuclear power generation facilities. EPA is also providing
clarification in the preamble to this final rule on additional issues
raised by the regulated community and, in a separate action in the
Federal Register of November 26, 2008, (73 FR 72016), the Agency is
proposing a new compliance date for farms.

DATES: This final rule is effective February 3, 2009.

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

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

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Final Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
    A. Hot-Mix Asphalt
    1. Hot-Mix Asphalt Exemption
    2. Alternative Options Considered
    B. Farms
    1. Exemption for Pesticide Application Equipment and Related Mix
Containers
    2. Applicability of Mobile Refueler Requirements to Farm Nurse
Tanks
    3. Differentiating the SPCC Requirements for Farms
    C. Residential Heating Oil Containers
    1. Exemption for Residential Heating Oil Containers
    2. Alternative Option Considered
    D. Definition of Facility
    1. Revisions to the Definition of Facility
    2. Determining the Components of a Facility: Examples of
Aggregation or Separation
    3. Alternative Options Considered
    E. Facility Diagram
    1. Revision to the Facility Diagram Requirement Regarding Mobile
or Portable Containers
    2. Indicating Complicated Areas of Piping or Oil-filled
Equipment on a Facility Diagram
    F. Loading/Unloading Racks
    1. Loading/Unloading Rack Definition
    2. Requirements for Loading/Unloading Racks
    3. Exclusions
    4. Alternative Option Considered
    G. Tier I Qualified Facilities
    1. Eligibility Criteria
    2. Provisions for Tier I Qualified Facilities
    3. SPCC Plan Template
    4. Self-Certification and Plan Amendments
    5. Tier II Qualified Facility Requirements
    6. Alternative Option Considered
    H. General Secondary Containment
    1. Revisions to the General Secondary Containment Requirement
    I. General Secondary Containment for Non-Transportation-Related
Tank Trucks
    J. Security
    1. Revisions to the Security Requirements
    K. Integrity Testing
    1. Amendments to Integrity Testing Requirements
    L. Animal Fats and Vegetable Oils
    1. Differentiated Requirements for AFVOs
    2. Differentiation Criteria: Containers Subject to FDA
Regulations--21 CFR part 110
    3. Differentiation Criteria: Elevated Bulk Storage Containers
    4. Differentiation Criteria: Containers made from Austenitic
Stainless Steel
    5. Differentiation Criteria: Containers with No External
Insulation
    6. Differentiation Criteria: Shop-Fabricated Containers
    7. Required Recordkeeping
    8. Other Suggested Criteria and Options
    M. Oil Production Facilities
    1. Definition of Production Facility
    2. Modifications to Sec.  112.9 for Drilling and Workover
Facilities
    3. SPCC Plan Preparation and Implementation
    4. Flowlines and Intra-facility Gathering Lines
    5. Flow-Through Process Vessels
    6. Alternative Qualified Facility Eligibility Criteria for Oil
Production Facilities
    7. Produced Water Containers
    8. Clarification of the Definition of Permanently Closed
Containers
    9. Oil and Natural Gas Pipeline Facilities
    N. Man-made Structures
    O. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations

    P. Wind Turbines
    Q. Technical Corrections
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order--13132 Federalism
    F. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children from
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. General Information

    The Environmental Protection Agency (EPA or the Agency) is amending
the Spill Prevention, Control, and Countermeasure (SPCC) rule to
address a number of issues that have been raised by the regulated
community. These amendments are intended to clarify, tailor, and
streamline certain requirements for those facility owners or operators
who are required to prepare and implement an SPCC Plan (or ``Plan'').
Specifically:
     EPA is exempting hot-mix asphalt (HMA) from the SPCC
requirements. This material is unlikely to flow as a result of the
entrained aggregate, such that there would be very few circumstances in
which a discharge of HMA would have the potential to reach navigable
waters or adjoining shorelines. EPA will continue to regulate asphalt
cement (AC), asphalt emulsions, and cutbacks, which are not HMA (that
is, they are not entrained with aggregate).
     EPA is exempting pesticide application equipment and
related mix containers, regardless of ownership or where used, that may
currently be subject to the SPCC rule when crop oil or adjuvant oil is
added to formulations.
     EPA is exempting residential heating oil containers (that
is, those used solely at single-family residences) from the SPCC
requirements. This exemption applies to aboveground containers, as well
as completely buried heating oil tanks, at single-family residences,
including those located at farms.
     EPA is modifying the definition of ``facility'' to clarify
that contiguous or non-contiguous buildings, properties, parcels,
leases, structures, installations, pipes, or pipelines may be
considered separate facilities, and to specify that the ``facility''
definition governs the applicability of 40 CFR part 112. These
revisions will allow an owner or operator to separate or aggregate
containers to determine the facility boundaries, based on such factors
as ownership or operation of the buildings, structures, containers, and
equipment on the site, the activities being conducted, property
boundaries, and other relevant considerations.
     EPA is revising the facility diagram requirement at Sec.
112.7(a)(3) to clarify how containers, fixed and mobile, are identified
on the facility diagram. EPA is also clarifying that where facility
diagrams become complicated due to the presence of multiple fixed oil
storage containers or complex piping/transfer areas at a facility, the
owner or operator can include that information separately in the SPCC
Plan in an accompanying table or key. For any mobile or portable
containers located in a certain area of the facility, an owner or
operator can mark the area on the diagram. If the total number of
mobile or portable containers changes, the owner or operator can
indicate the potential range in number of containers and the
anticipated contents and capacities of the mobile or portable
containers maintained at the facility in the Plan.
     EPA is defining the term ``loading/unloading rack,'' and
specifying that this definition governs the applicability of the
provision at Sec.  112.7(h), Facility tank car and tank truck loading/
unloading rack. This amendment provides clarity to the regulated
community on whether this provision applies to a facility. Furthermore,
EPA is specifically excluding oil production facilities and farms from
the requirements at Sec.  112.7(h), because loading/unloading racks are
not typically found at these facilities (loading/unloading activities
at these facilities will remain subject to the general secondary
containment requirements of Sec.  112.7(c)). EPA also is finalizing
editorial revisions to the provision at Sec.  112.7(h) for clarity.
     EPA is streamlining and tailoring the SPCC requirements
for a subset of qualified facilities. Qualified facilities were
addressed in a recent amendment to the SPCC rule (71 FR 77266, December
26, 2006). The owner or operator of such a facility has the option to
self-certify his SPCC Plan. This final rule further designates a subset
of qualified facilities (``Tier I qualified facilities'') as those that
meet the current qualified facility eligibility criteria and that have
no oil storage containers with an individual aboveground storage
capacity greater than 5,000 U.S. gallons. The owner or operator of a
Tier I qualified facility has the option to complete a self-certified
SPCC Plan template (found in Appendix G to 40 CFR part 112) in lieu of
a full SPCC Plan. The owner or operator can complete the SPCC Plan
template, which is comprised of a set of streamlined SPCC rule
requirements, and implement those streamlined requirements, to comply
with the SPCC regulation. All other qualified facilities will be
designated as ``Tier II qualified facilities.''
     EPA is amending the general secondary containment
requirements at Sec.  112.7(c) to clarify that the scope of secondary
containment need only take into consideration the typical failure mode,
and most likely quantity of oil that would be discharged, consistent
with current Agency guidance. This amendment also provides additional
examples of prevention systems for onshore facilities found at Sec.
112.7(c)(1).
     EPA is extending the exemption from the sized secondary
containment requirement for mobile refuelers provided in the December
2006 SPCC rule amendments (71 FR 77266, December 26, 2006) to non-
transportation-related tank trucks at a facility subject to the SPCC
rule.
     EPA is amending the facility security requirements at
Sec.  112.7(g) to allow an owner or operator of a facility to tailor
his security measures to the facility's specific characteristics and
location. A facility owner or operator is required to describe in the
SPCC Plan how he secures and controls access to the oil handling,
processing, and storage areas; secures master flow and drain valves;
prevents unauthorized access to starter controls on oil pumps; secures
out-of-service and loading/unloading connections of oil pipelines; and
addresses the appropriateness of security lighting to both prevent acts
of vandalism and assist in the discovery of oil discharges. This action
extends the streamlined security requirements that EPA provided to
qualified facilities in the December 2006 SPCC rule amendments (71 FR
77266, December 26, 2006) to all facilities subject to the security
requirements.
     EPA is amending the requirements at Sec. Sec.  112.8(c)(6)
and 112.12(c)(6) to provide flexibility in complying with the bulk
storage container integrity testing requirements. That is, EPA is
modifying the current provision to allow an owner or operator to
consult and rely on industry standards to determine the appropriate
qualifications for personnel performing tests and

inspections, as well as the type and frequency of integrity testing
required for a particular container size and configuration. This action
extends the streamlined bulk storage container inspection requirement
that EPA provided to qualified facilities in the December 2006 SPCC
rule amendments (71 FR 77266, December 26, 2006) to all facilities
subject to the integrity testing provisions.
     EPA is differentiating the integrity testing requirements
at Sec.  112.12(c)(6) for an owner or operator of a facility that
handles certain types of Animal Fats and Vegetable Oils (AFVOs). EPA is
providing the Professional Engineer (PE) or an owner or operator self-
certifying an SPCC Plan with the flexibility to determine the scope of
integrity testing that is appropriate for containers that store AFVOs,
based on compliance with certain FDA regulations and other criteria.
     EPA is finalizing several amendments to tailor the
requirements for oil production facilities to address a number of
concerns that have been raised by this sector. Specifically, EPA is:
Modifying the definition of ``production facility'' to be consistent
with the amendments to the definition of ``facility;'' extending the
timeframe by which the owner or operator of a new oil production
facility must prepare and implement an SPCC Plan; providing an
alternative option for flow-through process vessels at oil production
facilities to comply with the general secondary containment requirement
and additional oil spill prevention measures in lieu of sized secondary
containment requirements; providing an exemption for certain intra-
facility gathering lines subject to regulatory requirements of the U.S.
Department of Transportation's (DOT's) pipeline regulations in 49 CFR
parts 192 or 195; providing an alternative option for flowlines and
intra-facility gathering lines at oil production facilities for
contingency planning in lieu of all secondary containment requirements,
while establishing more specific requirements for a flowline/intra-
facility gathering line maintenance program; exempting certain produced
water containers that do not contain oil as certified by a Professional
Engineer (PE); providing compliance alternatives to sized secondary
containment for produced water storage containers that are not
otherwise exempt; establishing an option for an oil production facility
to be eligible to self-certify an SPCC Plan as a qualified facility;
and clarifying the definition of ``permanently closed'' as it applies
to oil production facilities and containers present at an oil
production facility.
     EPA is exempting underground oil storage tanks deferred
under 40 CFR part 280 that supply emergency diesel generators at
nuclear power generation facilities and that are subject to design
criteria under the Nuclear Regulatory Commission (NRC) regulations.
This exemption includes both tanks that are completely buried and tanks
that are below-grade and vaulted.
    In this notice, EPA is also reiterating clarifications to a number
of issues of concern to the regulated community that were provided in
the 2007 proposal (72 FR 58378, October 15, 2007), including the
consideration of man-made structures in determining how to comply with
the SPCC rule requirements and the applicability of the rule to wind
turbines that are used to produce electricity. Additionally, EPA is
explaining actions that will be taken in collaboration with DOT to
clarify the jurisdiction over facilities, as defined in a Memorandum of
Understanding (MOU) between the DOT and EPA (36 FR 24080, November 24,
1971). EPA also is finalizing technical corrections to Sec. Sec.  112.3
and 112.12. This rulemaking marks the completion of the SPCC-related
improvements planned by the Agency at this time. EPA greatly benefited
from the considerable public input in the recent SPCC rulemakings.
Given the breadth of these changes, and the importance of the SPCC
program, EPA plans to review the implementation of these changes after
these latest revisions become effective. With regard to the oil
production industry, this revision would include an examination of the
utility and effectiveness of the new approaches for avoiding and
minimizing spills.

II. Entities Potentially Affected by This Final Rule

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

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

III. Statutory Authority and Delegation of Authority

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

IV. Background

    The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164). On July 17, 2002, EPA published a final rule amending the
SPCC rule, formally known as the Oil Pollution Prevention regulation
(40 CFR part 112). The July 2002 rule included revisions to the
requirements for SPCC Plans and for Facility Response Plans (FRPs). It
also included new subparts outlining the requirements for various
classes of oil; revised the applicability of the regulation; amended
the requirements for completing SPCC Plans; and made other
modifications (67 FR 47042). The revised rule became effective on
August 16, 2002. After publication of this rule, several members of the
regulated community filed legal challenges to certain aspects of the
rule.\1\ All of the issues raised in the litigation have been resolved;
EPA published clarifications in the Federal Register to several aspects
of the revised rule (69 FR 29728, May 25, 2004),\2\ and in a separate
action in the Federal Register of November 26, 2008, (73 FR 71941), the
Agency is announcing the vacatur of the July 17, 2002 revisions to the
definition of ``navigable waters.'' In addition, concerns were raised
about the ability to implement certain aspects of the July 2002 rule.
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    \1\ American Petroleum Institute v. Johnson, 571 F.Supp. 2d 165
(D.D.C. 2008). The only issue resolved through litigation was the
challenge to the definition of navigable waters in the 2002 rule
amendment.
    \2\ Several commenters requested that the Agency codify the
clarifications as part of this rulemaking. To the extent the subject
matter of the clarification has been reflected in this rulemaking,
the Agency has either incorporated the clarification in the
regulatory text or reaffirmed the Agency's position in this
preamble.
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    As a result, EPA proposed amendments to the SPCC rule in December
2005 and finalized them in December 2006 to address a number of issues,
including those pertaining to certain ``qualified'' facilities,
qualified oil-filled operational equipment, motive power containers,
mobile refuelers, removal of provisions inapplicable to AFVOs, and the
compliance date for farms. See the rule amendment that was published in
the Federal Register at 71 FR 77266 (December 26, 2006) for a more
detailed discussion of these amendments.
    In addition, EPA released the SPCC Guidance for Regional Inspectors
in December 2005. This guidance document is intended to assist regional
inspectors in reviewing the implementation of the SPCC rule at a
regulated facility. The guidance document is designed to facilitate an
understanding of the rule's applicability, to help clarify the role of
the inspector in the review and evaluation of a facility owner or
operator's compliance with the performance-based SPCC requirements, and
to provide a consistent national policy on several SPCC-related issues.
The guidance is available on the Agency's Web site at http://
www.epa.gov/emergencies. EPA intends to issue revisions to this
guidance document that address changes made to the SPCC rule,
consistent with the regulatory amendments in this action and the
December 2006 amendments (71 FR 77266, December 26, 2006).
    Furthermore, EPA has amended the dates for compliance with the July
2002 amendments to the SPCC rule by extending the dates for preparing
or amending, and implementing revised SPCC Plans in 40 CFR 112.3(a),
(b), and (c), most recently by a rule published May 16, 2007 (72 FR
27443). EPA took the most recent action to provide owners or operators
of facilities the time necessary to fully understand the amendments to
the SPCC rule finalized in December 2006, and to allow potentially
affected owners and operators an opportunity to make any changes to
their facilities and to their SPCC Plans, as well as to provide time
for the Agency to take final action on this amendment. EPA expects that
this extension will provide the regulated community time to review and
understand any revised material presented in the SPCC Guidance for
Regional Inspectors. Please see the Federal Register notice at 72 FR
27443, May 16, 2007 for further discussion of the July 1, 2009
compliance date. In a separate action in the Federal Register of
November 26, 2008 (73 FR 72016), EPA is also proposing new dates by
which the owners or operators of facilities must prepare or amend and
implement their SPCC Plan.
    The December 2006 SPCC rule amendments (71 FR 77266, December 26,
2006) addressed only certain areas of the SPCC requirements and
specific issues and concerns raised by the regulated community. The EPA
Regulatory Agenda and the 2005 Office of Management and Budget (OMB)
report on ``Regulatory Reform of the U.S. Manufacturing Sector''
highlighted other areas where further changes may be appropriate.
Therefore, in October 2007, EPA proposed additional amendments to the
SPCC rule to address these changes (72 FR 58378, October 15, 2007).
Section V of this notice describes EPA's final action on those proposed
amendments and presents the major comments received on the proposal, as
well as EPA's response to those comments. For a more complete
discussion of the comments received, and the Agency's response to
comments, see Comment and Response Document: Spill Prevention, Control,
and Countermeasure Rule 2008 Amendments, a copy of which is available
in the docket for this rulemaking.

V. This Action

A. Hot-Mix Asphalt

    Hot-mix asphalt (HMA) is a blend of asphalt cement (AC) and
aggregate material, such as stone, sand, or gravel, which is formed
into final paving products for use on roads and parking lots. All types
of asphalt, including HMA, are petroleum oil products. Under this
amendment to the SPCC rule, EPA is exempting HMA from SPCC rule
applicability.
1. Hot-Mix Asphalt Exemption
    EPA is exempting HMA from SPCC rule applicability by adding a new
paragraph (8) under the general applicability section, Sec.  112.1(d),
and modifying Sec.  112.1(d)(2) so that the capacity of storage
containers solely containing HMA is not counted toward the facility's
oil storage capacity calculation. EPA is taking this action based on
the fact that this material is unlikely to flow as a result of the
entrained aggregate, such that there would be very few circumstances in
which a discharge of HMA would have the potential to reach navigable
waters or adjoining shorelines. This is particularly of concern at
facilities subject to the SPCC requirements solely because of the
presence of HMA. EPA never intended that HMA be included as part of a
facility's SPCC Plan.
a. Comments
    Several commenters expressed general support for the exemption, and
no comments were submitted that opposed the proposed exemption.
b. Response to Comments
    EPA agrees with the commenters and is finalizing the exemption for
HMA, as proposed.
2. Alternative Options Considered
    As an alternate approach, EPA also considered exempting both HMA
and AC from the requirements of the SPCC rule, but chose not to
propose, nor finalize, such an option. Therefore, this exemption for
HMA does not include AC. Although AC is semi-solid or solid at ambient
temperature and pressure, it is generally stored at elevated
temperatures. At such elevated temperatures, AC has fluid flow
properties similar to other semi-solid oils, such as paraffin wax and
heavy bunker fuels and therefore is capable of flowing. All of these
oils are regulated under the SPCC rule to prevent discharges to
navigable waters or adjoining shorelines.
a. Comments
    A number of alternative approaches focused on extending the
exemption to other similar materials, such as AC, Group 5 oils (that
is, those oils with specific gravities greater than or equal to 1.0),
waxes and other heavy oils. One commenter suggested extending the
exemption to all solid or non-flowing materials, such as whenever oil
is mixed with material that will make the mixture unlikely to flow at
ambient temperatures: Oil mixed with sorbents, gelled oils, etc.
Another commenter suggested extending the exemption to other Group 5
oils. Other commenters suggested extending this exemption to paraffin
wax or to all waxes. One commenter requested that EPA clarify that any
oils associated with asphalt production be regulated if their total
volume exceeds 1,320 U.S. gallons.
b. Response to Comments
    The Agency disagrees with these commenters. Unlike HMA, these
materials do have the potential to discharge into navigable waters or
adjoining shorelines because they are generally stored at elevated
temperatures and thus, are capable of flowing if there is a release
from the container. No new or compelling data was provided by
commenters who disagreed with this position. However, it should be
noted that the SPCC rule only applies to facilities that, due to their
location, can reasonably be expected to discharge oil to navigable
waters or adjoining shorelines. In determining whether there is a
reasonable expectation of discharge, an owner or operator of a facility
may consider the nature and flow properties of the oils handled at the
facility. If a facility owner or operator determines that there is a
reasonable expectation of a discharge of oil to navigable waters or
adjoining shorelines from any single oil container (including a
container storing oil associated with hot-mix asphalt production), and
other rule applicability criteria are met, then all oil containers at
the facility are subject to the rule's requirements (except as
otherwise exempted).
    In addition, as EPA noted in the preamble to the proposed rule, the
Agency believes that the SPCC rule already provides the facility owner
or operator with significant flexibility to select prevention and
control measures that are appropriate and cost-effective for the
facility and type of product being stored. For example, the secondary
containment requirements of the SPCC rule may be satisfied if the
secondary containment system, including walls and floor, are capable of
containing the oil and are constructed so that any discharge from a
primary containment system will not escape secondary containment before
cleanup occurs (Sec.  112.7(c)) and diked areas are sufficiently
impervious to contain the oil (Sec. Sec.  112.8(c)(2) and
112.12(c)(2)). Therefore, the flow properties of Group 5 oils (as for
any oil) may be considered in designing appropriate means of secondary
containment. If, once cooled, the oil remains in place, an effective
means of secondary containment may involve surrounding the bulk storage
container with an earthen berm that will contain the oil until it can
solidify.

B. Farms

    The owner or operator of a farm, by virtue of storing or using oil,
is potentially subject to the SPCC requirements. EPA promulgated the
definition of farm at Sec.  112.2 in the December 2006 amendments to
the SPCC rule (71 FR 77266, December 26, 2006), which defined a farm as
``* * * a facility on a tract of land devoted to the production of
crops or raising of animals, including fish, which produced and sold,
or normally would have produced and sold, $1,000 or more of
agricultural products during a year.'' While the December 2006
amendments streamlined the requirements for most of the farms that are
subject to SPCC requirements, EPA believes further amendments to the
SPCC regulations are appropriate given the unique characteristics of
farms (for example, their geographic scale, configuration, land
ownership and lease structure, and on-farm activities). Specifically,
EPA recognizes that a farm: May be privately owned and may contain the
residence of the owner or operator; has a configuration that varies
across the country, from farm to farm and season to season; contains
low-volume oil storage that is often dispersed across different land
parcels separated by roads and natural barriers; may have multiple
fueling sites; may be located in a remote area; stores oil on-site for
on-farm use and not for further distribution; uses oil seasonally in
different quantities; and leases a significant amount of land to or
from secondary parties. EPA is finalizing a number of amendments to the
SPCC rule potentially affecting farms and other facilities which were
proposed in October 2007 (72 FR 58378, October 15, 2007), including an
exemption for pesticide application equipment and related mix
containers, and providing clarification on the applicability of the
mobile refueler requirements to farm nurse tanks. Additionally farms
are likely to benefit

from other amendments finalized in this rule, such as clarifications to
the definition of facility; the option to allow a subset of qualified
facilities (``Tier I qualified facilities'') to complete the SPCC Plan
template in Appendix G of this part in lieu of preparing a full SPCC
Plan; exemption of residential heating oil tanks at single family
residences; amendments to the security and integrity testing
requirements; exemption from the loading/unloading rack requirements;
and amendments to the facility diagram requirements.
    In addition, EPA extended the compliance date for the owner or
operator of a farm, as defined in Sec.  112.2, to prepare or amend and
implement the farm's SPCC Plan until the effective date of a rule
addressing whether to provide differentiated requirements for farms (71
FR 77266, December 26, 2006). EPA believes that the amendments to the
SPCC rule in this action address the concerns raised by the
agricultural industry. In a separate action in the Federal Register of
November 26, 2008, (73 FR 72016), EPA is proposing new dates by which
the owner or operator of a farm that is a qualified facility must
prepare or amend and implement his SPCC Plan.
1. Exemption for Pesticide Application Equipment and Related Mix
Containers
    EPA is adding a new paragraph (10) under the general applicability
section, Sec.  112.1(d), to exempt all pesticide application equipment
and related mix containers. EPA is also modifying Sec.  112.1(d)(2) so
that the capacity of these pesticide application equipment and related
mix containers is not counted toward the facility's oil storage
capacity calculation. Pesticide application equipment includes ground
boom applicators, airblast sprayers, and specialty aircraft that are
used to apply measured quantities of pesticides to crops and/or soil.
Related mix containers are those used to mix pesticides with water and,
as needed, adjuvant oils, just prior to loading into application
equipment. In the October 2007 (72 FR 58378, October 15, 2007),
proposal, EPA proposed to limit this exemption to pesticide application
equipment and related mix containers used at farms. In this final rule,
however, EPA is extending the exemption to all pesticide application
equipment and related mix containers, regardless of ownership or where
used, because the application of pesticides through the use of this
equipment is the same at any location.
    EPA is taking this action consistent with its findings in
evaluating the potential harm posed by pesticide containers and
application equipment when promulgating the Standards for Pesticide
Containment Structures in 40 CFR part 165, Subpart E (see 71 FR 47330,
August 16, 2006). These regulations apply to retailers who repackage
agricultural pesticides, custom blenders of agricultural pesticides,
and commercial applicators of agricultural pesticides, but do not apply
to pesticide application equipment and related mix containers, because
they do not fit the definition of stationary pesticide containers. In
the development of the proposed exemption to the SPCC rule (72 FR
58378, October 15, 2007), EPA indicated that pesticide formulations may
contain crop oil or adjuvant oil in the mix formulations just prior to
application, which could subject certain pesticide containers to the
SPCC requirements. This same condition could exist at agricultural
retailers that provide custom application services, as well as
commercial applicators. At these facilities, pesticide application
equipment, such as ground boom sprayers and aerial applicators could be
loaded with pesticide mix formulations with crop oil or adjuvant oil.
In these instances, similar to on-farm pesticide application equipment,
this equipment could have been subject to the SPCC requirements when
oil is mixed with the pesticide formulation just prior to use.
    Under this amendment, containers (55 U.S. gallons or greater in
capacity) storing oil prior to mixing it with a pesticide, or
containers used to store pesticides that contain oil, are considered
bulk storage containers and continue to be regulated as such under the
SPCC rule.
a. Comments
    Several commenters expressed general support for the exemption of
pesticide application equipment and related mix containers on farms
from the SPCC requirements. Other commenters suggested that the
exemption should be extended to all users of this equipment, arguing
that this would limit the potential for duplicative regulation of
pesticides by the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) and the SPCC program. For example, the energy utilities sector
requested an exemption for the pesticide application equipment and
related mix containers they use to maintain their right-of-way networks
and to preserve treated wood poles used in electricity transmission and
distribution. One commenter suggested that the Agency exempt pesticide
mixtures with low concentrations of oil from SPCC regulation
altogether.
b. Response to Comments
    EPA evaluated the merits of extending the exemption for all
pesticide application equipment and related mix containers at farms to
all such equipment, regardless of ownership or where used, based on the
fact that this pesticide use, and certain pesticide containers, are
already subject to ``similar'' regulation under FIFRA to assure the
safe use, reuse, storage, and disposal of pesticide containers. As
such, EPA agrees with the commenters that it would be appropriate to
extend the exemption to pesticide application equipment and related mix
containers, regardless of ownership or point of use.
    On the other hand, EPA does not agree that the Agency should exempt
pesticide mixtures with low concentrations of oil from SPCC regulation.
Pesticide mix formulations, such as those that contain crop oil or
adjuvant oil, are potentially subject to the SPCC rule because they are
considered oil mixtures. The statutory definition of oil includes oil
of any kind and in any form (33 U.S.C. section 1321(a)(1)), and does
not exclude oil mixtures. Discharges of oil mixtures to navigable
waters or adjoining shorelines may be harmful as set forth in 40 CFR
part 110.
2. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
    In the October 2007 notice of proposed rulemaking (72 FR 58378,
October 15, 2007), EPA clarified that the definition of mobile
refueler, as promulgated in the December 2006 amendments to the SPCC
rule (71 FR 77266, December 26, 2006), includes a nurse tank, which is
a mobile/portable container used at farms to store and transport fuel
for transfers to or from farm equipment (such as tractors and combines)
to other bulk storage containers (such as containers used to provide
fuel to wellhead/relift pumps) at the farm. A nurse tank is often
mounted on a trailer for transport around the farm; thus, EPA believes
that this function is consistent with that of a mobile refueler. A
nurse tank, like other types of mobile refuelers, is exempt from the
sized secondary containment requirements at Sec. Sec.  112.8(c)(2) and
112.12(c)(2), but is still subject to the general secondary containment
requirements at Sec.  112.7(c).
a. Comments
    Several commenters supported the Agency's clarification that a
nurse tank is considered a mobile refueler, and

thus exempt from the sized secondary containment requirements. Some
commenters also requested that EPA clarify that the definition of
mobile refuelers includes non-road licensed refueling equipment which
are used to refuel farm equipment in the fields.
b. Response to Comments
    EPA agrees with those commenters supporting the clarification. EPA
also understands that agricultural retail suppliers may provide
refueling services via non-road licensed equipment to farm equipment in
farm fields. As the Agency described in the preamble to the proposed
rule (72 FR 58378, October 15, 2007), a nurse fuel tank is typically
used at a farm to store and transport fuel to or from farm equipment.
Therefore, EPA agrees with commenters that non-road licensed equipment
that is used to refuel farm equipment functions as a mobile refueler,
similar to a farm fuel nurse tank. Additionally, owners and operators
of these nurse tanks may benefit from other amendments in this action
regarding the extension of relief from sized secondary containment to
all non-transportation-related tank trucks. For example, nurse tanks
containing oils other than a fuel such as lubrication or hydraulic oil,
would also be eligible.
3. Differentiating the SPCC Requirements for Farms
    In developing the amendments in the October 2007 proposed rule, EPA
considered and took comment on a number of alternatives for
differentiating the SPCC requirements for farms, but are not finalizing
them, as discussed below.
a. No Further Action
    EPA evaluated whether any further action was necessary specific to
farms, including no further action. As described in the proposal (72 FR
58378, October 15, 2007), the Agency proposed amendments based on
previous comments from agricultural stakeholders, farm-related site
visits conducted by EPA and the August 16, 2006, action concerning
pesticide containers (40 CFR part 165, Subpart E, 71 FR 47330). EPA is
finalizing those actions; the Agency also is promulgating the following
additional amendments to the SPCC regulation that could also benefit
farmers: Clarifications to the definition of facility; the option to
allow the owners and operators of a subset of qualified facilities
(i.e., ``Tier I qualified facilities'') to complete the SPCC Plan
template in Appendix G of this part in lieu of preparing a full SPCC
Plan; exemption of residential heating oil tanks at single family
residences, including at farms; amendments to the security and
integrity testing requirements; exemption from the loading/unloading
rack requirements; and amendments to the facility diagram requirements.
b. Exempt Farms Below a Certain Storage Capacity Threshold
    EPA considered exempting farms that stored oil below a certain oil
storage capacity threshold (other than 1,320 U.S. gallons) from the
SPCC requirements, but determined that there was insufficient data
available to support an exemption exclusive to farms. While farming
operations may be unique, the storage tanks found at farms are similar
in function and design as those found at other types of facilities, and
therefore have a similar potential for discharge. As a result, EPA
chose not to propose this option, but did request comment on the merits
of this approach.
c. Alternative Qualified Facility Eligibility Criteria for Farms
    Under Sec.  112.6, a facility that has an aggregate aboveground
storage capacity of 10,000 U.S. gallons or less and has not had a
single discharge exceeding 1,000 U.S. gallons or two discharges each
exceeding 42 U.S. gallons within any twelve month period in the three
years prior to Plan certification, or since becoming subject to 40 CFR
part 112 if the facility has been in operation for less than three
years is eligible for the qualified facility Plan requirements (i.e. a
self-certified Plan in lieu of a PE certified Plan). The current
criteria for qualified facilities, found at Sec.  112.3(g), treat farms
like all other facilities. However, EPA considered whether there are
alternative criteria unique to farms that would be appropriate for
identifying qualified facilities. In the October 2007 proposed
rulemaking, EPA requested comment on (1) whether a change in the
criteria is appropriate for farms; and (2) whether a higher threshold
is appropriate for farms.
d. Comments
    Several commenters recommended that the Agency provide an exemption
for farms at a minimum of 10,000 U.S. gallons oil storage capacity,
citing a lack of risk at such a volume and/or the potential for cost
savings, although no specific data was provided to support this
position. Other commenters suggested that EPA adopt a higher threshold,
such as a 20,000-gallon threshold, as a criterion for qualified
facility eligibility. Specifically, agricultural stakeholders requested
that EPA raise the Tier I individual container threshold to 10,000 U.S.
gallons and raise the Tier II total oil storage capacity threshold to
20,000 U.S. gallons. These commenters supported this threshold by
citing limitations on the lower limit for bulk purchase of oil, the
need to maintain empty and/or seasonal-use tanks on a farm, the lack of
financial resources to hire environmental managers, the low likelihood
of oil spills in the industry, and general environmental stewardship
practices inherently in place.
    Still other commenters provided additional comments and suggestions
related to farms. One commenter requested that EPA remove the qualified
facility approach so that all farmers, including small businesses and
other small oil storage facilities are required to prepare a complete
SPCC Plan certified by a PE based on 1,320-gallon storage capacity.
Other commenters requested additional time for farms to comply with the
SPCC regulation, stating that this additional time will provide farmers
and others the opportunity to work with government agencies, including
the U.S. Department of Agriculture (USDA), on the development of a
model plan or guidelines. Finally, a commenter sought clarification
that oil tanks not in use can be classified as out of service, without
the need to remove the tanks from the facility.
e. Response to Comments
    EPA continues to believe that there is insufficient data to support
an outright exemption exclusively for farms beyond the existing
aboveground storage capacity threshold of 1,320 U.S. gallons that
applies to all facilities (Sec.  112.1(d)(2)(ii)). As noted previously,
no data was provided by the commenters to support such an exemption. In
addition, EPA notes that a significant number of owners and operators
of farms will benefit from the amendments finalized in this action and
the December 2006 SPCC rule amendments (71 FR 77266, December 26,
2006), which allow a significant number of farms to develop self-
certified SPCC Plans.
    With respect to an alternative ``qualified facility'' threshold,
EPA considered the commenters' suggestions for modifying the existing
qualified facilities threshold of 10,000 U.S. gallons total aboveground
storage capacity. However, the agricultural community did not provide
information that would lead the Agency to conclude that farms are
sufficiently different to warrant further differentiation from other
facilities that store oil. In fact, EPA believes that many non-farm
facilities could have similar needs to purchase

fuel in bulk and may have similar if not identical storage needs as
identified by agricultural stakeholders. Thus, EPA is not persuaded by
these comments to raise the existing qualified facilities threshold
solely for farms beyond 10,000 U.S. gallons. In setting the qualified
facilities threshold at 10,000 U.S. gallons in the December 2006
amendments, EPA sought to provide an alternative for facilities, among
other things, with simple oil storage configurations and smaller
quantities of oil handled (see 71 FR 77271, December 26, 2006). EPA
continues to maintain that the focus of the qualified facilities
alternative should be on simple configurations and small quantities of
oil stored or handled.\3\
---------------------------------------------------------------------------

    \3\ Although the Agency chose not to raise the threshold for
farms in identifying who is eligible as a ``qualified facility,''
the Agency estimates that under the current qualified facilities
eligibility criteria, greater than 90 percent of farms subject to
the SPCC rule could be eligible.
---------------------------------------------------------------------------

    It should also be noted that, as described in Section V.G of this
notice, EPA is finalizing a multi-tiered approach to allow the owner or
operator of a facility that meets the eligibility criteria for a
qualified facility to self-certify his SPCC Plan, and allow the owners
or operators of a subset of qualified facilities (i.e., ``Tier I
qualified facilities'') to complete the SPCC Plan template in Appendix
G of this part in lieu of preparing a full SPCC Plan. EPA believes that
the Tier I qualified facility alternative should focus on facilities
with the simplest configurations and smallest oil storage containers.
Commenters did not provide sufficient data to support an increase in
the Tier I threshold for farms higher than proposed. For more
information on Tier I and Tier II qualified facilities, see Section V.G
of this notice.
    EPA also disagrees that the amendments to the SPCC rule in December
2006 provide ``special treatment'' to any eligible facility. Farmers,
small businesses, and other small oil storage facilities may be
eligible to self-certify their SPCC Plans if they meet the eligibility
criteria for qualified facilities in Sec.  112.3(g). In providing this
option for facilities handling smaller amounts of oil, the Agency
sought to focus on those smaller, less complex operations that may be
concerned about the impact of using a PE on their limited budget. Some
of the current noncompliance with the SPCC regulation may be attributed
to those concerns. The Agency believes that providing a streamlined
option for owners and operators of these smaller, less complex
facilities should improve the overall compliance for the SPCC
regulation, ultimately resulting in greater environmental protection
(71 FR 77270, December 26, 2006). The owners and operators of farms,
small businesses and other small oil storage facilities may be eligible
to self-certify their SPCC Plans if they meet the eligibility criteria
for qualified facilities in Sec.  112.3(g).
    EPA defines permanently closed at Sec.  112.2. Any container that
meets this definition is not subject to the SPCC regulation and
therefore would not be included in the facility's aggregate oil storage
capacity. The definition does not require that the permanently closed
container be removed from the facility. Similarly, a new, empty tank
that arrives at a farm or other SPCC-regulated facility is not to be
counted towards a facility's aggregate oil storage capacity until the
tank is actually used to contain oil. EPA discusses this clarification
further in section V.M of this notice.
    In response to the commenters requesting additional time for farms
to comply with the SPCC regulation, EPA believes that the amendments to
the SPCC rule in this final action address the concerns raised by the
agricultural industry. Farmers will benefit from many of the
streamlined rule provisions including: Clarifications to the definition
of facility; the option to allow the owners and operators of a subset
of qualified facilities (i.e., ``Tier I qualified facilities'') to
complete the SPCC Plan template in Appendix G of this part in lieu of
preparing a full SPCC Plan; exemption of residential heating oil tanks
at single family residences, including farmsteads; amendments to the
security and integrity testing requirements; exemption from the
loading/unloading rack requirements; and amendments to the facility
diagram requirements. Furthermore, in a separate action in the Federal
Register of November 26, 2008, (73 FR 72016), EPA is proposing a new
compliance date for the owner or operator of a farm, as defined in
Sec.  112.2, that also meets the eligibility criteria as a qualified
facility, to prepare or amend and implement the farmer's SPCC Plan.

C. Residential Heating Oil Containers

    Many regulated facilities, including farms, may include the
residence of the owner or operator within the geographical confines of
the facility. EPA did not intend to regulate residential uses of oil
(that is, those at non-commercial buildings) under the SPCC rule.
Therefore, EPA is exempting residential heating oil containers at
single family residences from the SPCC requirements.
1. Exemption for Residential Heating Oil Containers
    EPA is adding a new paragraph (9) under the general applicability
section, Sec.  112.1(d) to exempt from SPCC applicability containers
that are used to store oil for the sole purpose of heating single-
family residences (including a residence at a farm). EPA is also
modifying Sec.  112.1(d)(2) so that the capacity of the single-family
residential heating oil containers are not counted toward facility
aggregate oil storage capacity. This action removes from SPCC
applicability containers (both aboveground and completely buried)
located at a single-family residence that are used solely to store
heating oil used to heat the residence. Under this amendment, the owner
or operator is not required to count any residential heating oil
container as part of the facility's aggregate storage capacity for the
purpose of determining SPCC applicability, and no SPCC requirements
will apply to the exempt containers. The SPCC requirements continue to
apply, however, to oil containers used to heat other non-residential
buildings within a facility, because the exemption covers only
residential heating oil containers at single family residences.
a. Comments
    Several commenters expressed support for the exemption of
residential heating oil containers at single family residences from the
SPCC requirements. However, some commenters suggested extending the
exemption to locations beyond single-family residences. One commenter
suggested that EPA exempt buildings and offices located remotely from
mining operations. Another commenter suggested the exemption should
include heating oil tanks at a facility occupied daily, with storage
capacity not exceeding 5,000 gallons, in containers not exceeding 1,000
gallons, because these facilities are regularly occupied, and thus
would not pose any more likelihood of a release than a single-family
residence. One commenter suggested exempting heating oil storage
containers that serve four or fewer households, consistent with the
Federal underground storage tank regulations.
b. Response to Comments
    EPA agrees with those commenters who supported the exemption, and
is finalizing the exemption as proposed, because EPA views a single-
family residence as a household that has direct ownership of the oil
stored in the heating oil container. The Agency did not intend, by
itself, that a single-family

residence that stores heating oil for its use be subject to SPCC
applicability, particularly because such residences generally do not
have significant quantities of other types of oil. The preamble to the
original 1973 SPCC rule (38 FR 34164, December 11, 1973), identified
containers of 660 U.S. gallons as the normal domestic code size for
non-buried heating oil containers, and that buildings may have two such
containers. The storage capacity thresholds for SPCC rule applicability
were initially established at 660 U.S. gallons for an individual
container and 1,320 U.S. gallons total aboveground capacity for the
facility, based on the possible capacity of residential heating oil
containers. Thus, the presence of heating oil containers at a single-
family residence was generally not intended, by itself, to trigger SPCC
applicability. On the other hand, EPA disagrees with those commenters
who suggested extending the exemption beyond heating oil containers at
single-family residences. Owners and operators of commercial
facilities, such as mining operations and commercial multi-family
structures (such as condominiums and apartment complexes), will
generally store much larger volumes of oil, and if there is a
reasonable expectation of an oil discharge to navigable waters or
adjoining shorelines, EPA believes it needs to be addressed in the SPCC
Plan. Of course, any facility that has an aggregate oil storage
capacity of less than 1,320 U.S. gallons in aboveground containers or
42,000 U.S. gallons in completely buried tanks are not subject to the
SPCC regulation (see Sec.  112.1(d)(2)). In addition, if a commercial
facility (for example, a university) includes a single-family residence
on the premises, then any heating oil container associated solely with
this residence is exempt from SPCC rule applicability.
2. Alternative Option Considered
    EPA invited comments on an exemption only for residential heating
oil containers located at farms, because farms commonly include, within
the geographical confines of the facility, the residence of the farmer.
Under this option, only heating oil containers associated with single-
family residences on farms would benefit from an exemption from the
SPCC rule.
a. Comments
    One commenter supported exempting heating oil storage containers
located at a farm facility's single-family residence.
b. Response to Comments
    EPA agrees with the commenter that heating oil containers located
at a single-family residence at a farm should be exempt from the SPCC
rule and is finalizing such an exemption. However, the commenter did
not provide any basis to limit the exemption solely to farms. Because
EPA believes the same rationale applies to exempt heating oil
containers to single-family residences at facilities other than farms,
the exemption applies to all single-family residences.

D. Definition of Facility

    EPA first defined both ``facility'' and ``production facility'' at
Sec.  112.2 in the July 2002 amendments to the SPCC rule (67 FR 47042,
July 17, 2002). Under this action, EPA is modifying the definition of
facility in three ways: (1) To clarify that this definition alone
governs the applicability of 40 CFR part 112; (2) to clarify that
containers can be separated or aggregated, based on various factors in
defining ``facility''--that is, the owner or operator has discretion in
identifying which contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines make up
the facility; and (3) to add the qualifier ``oil'' before the term
``waste treatment.''
1. Revisions to the Definition of Facility
    EPA is amending the definition of ``facility,'' as found in Sec.
112.2, in the following ways:
     To show that only the definition of ``facility'' rather
than the definition of ``production facility'' determines applicability
for purposes of part 112, and specifically in Sec.  112.20(f)(1) when
applied to an oil production facility, EPA is adding the sentence
``Only this definition governs whether a facility is subject to this
part.'' to the definition of facility. This language is consistent with
the clarification on the definition of facility published in a May 25,
2004 Federal Register notice (69 FR 29728).
     To address concerns over how oil containers and equipment
can be separated or aggregated for purposes of determining ``the
facility,'' and thus, the applicability of the SPCC requirements to
``the facility,'' EPA is inserting the sentence ``Contiguous or non-
contiguous buildings, properties, parcels, leases, structures,
installations, pipes, or pipelines under the ownership or operation of
the same person may be considered separate facilities.'' These
revisions allow an owner or operator of a facility to separate or
aggregate containers to determine the facility boundaries, based on
such factors as ownership or operation of the buildings, structures,
containers, and equipment on the site, and activities being conducted,
property boundaries, and other relevant considerations. EPA is adding
the terms ``property,'' ``parcel,'' and ``lease'' to the list of terms
mentioned in the first sentence of the definition. EPA believes that
adding these terms further distinguishes the attributes that can be
considered in determining facility boundaries. These additions are
merely examples of terms that might define a facility and are familiar
to the regulated community, such as farmers or oil production facility
owners. They are not meant to be exclusive.
     To clarify that the term ``waste treatment'' refers to oil
waste treatment and not to treatment of any other type of waste that
may be generated, EPA is amending the first sentence of the definition
of facility to add the qualifier ``oil'' before the term ``waste
treatment.''
a. Comments
    Many commenters expressed general support for the proposed
amendments. Several commenters stated that these revisions would allow
them the ability to prioritize compliance activities in environmentally
and economically beneficial ways (for example, being able to plan for
potential discharges in areas where they are more likely to occur).
Several commenters indicated that certain types of facilities, such as
those in the wind power, agriculture, electrical utility, forestry,
aviation, and coal mining industries, might be managed by multiple
operators, and that dividing a parcel of land into facilities on the
basis of these individual operations makes sense.
    One commenter, however, objected to the amendment if it would
result in a facility being disaggregated into more than one facility,
thereby lowering the total oil capacity volume of the `new' facility to
below the regulatory thresholds.
b. Response to Comments
    EPA agrees with those commenters who supported this approach. The
Agency also agrees with the commenters that the owner or operator has
the discretion to determine what constitutes a facility. That is, the
rule may become applicable to a facility for the first time in cases of
aggregation of buildings, structures or equipment and associated
storage or type of activity, or the division of the facility may end
applicability due to separation of buildings, structures or equipment
and associated oil storage or type of activity. Thus, EPA recognizes
that this

amendment may have the effect of removing a facility from being subject
to the SPCC requirements. However, an owner or operator may not make
facility determinations indiscriminately and in such a manner as to
simply avoid applicability of the rule (for example, the division of
one facility into separate facilities with one oil storage container
located at each facility where all storage containers are located side-
by-side or close to each other, and are used for the same purpose). For
further information on the definition of facility, see Chapter 2 of the
SPCC Guidance for Regional Inspectors.
2. Determining the Components of a Facility: Examples of Aggregation or
Separation
    The factors for determining the boundaries of a facility as listed
in the definition of facility are not exclusive, but are merely
examples. The SPCC Guidance for Regional Inspectors elaborates on
additional factors that may be considered. Those factors may include,
but are not limited to: Ownership, management, or operation of the
containers, buildings, structures, equipment, installations, pipes, or
pipelines on the site; similarity in functions, operational
characteristics, and types of activities occurring at the site;
adjacency; or shared drainage pathways. In the October 2007 proposed
rule, EPA provided several examples and hypothetical scenarios of how a
facility owner or operator may determine what is considered a
``facility'' for the purposes of an SPCC Plan (see 72 FR 58387, October
15, 2007).
a. Comments
    One commenter stated that, for oil and gas operations, owners and/
or operators often combine many leases together. These leases may not
be associated with the same oil or gas field, but they are associated
with the same operator. The commenter requested assurance that this
practice is consistent with the amended definition of facility.
    While additional comments did not focus on the specific examples
provided, several commenters raised questions about how the
modification to the definition of facility may affect various types of
facilities. One commenter supported flexibility to prepare single or
multiple SPCC Plans for wind power plants, which potentially involve
many landowners spread over large areas. One commenter requested
clarity that a petroleum refinery owner may determine that refinery
operations are a facility and ongoing remediation activities at the
same petroleum refinery location can be considered a separate facility.
Another commenter from the aviation sector requested that EPA clarify
whether a tank at an exempt facility may be subject to regulation by
transferring fuel from the tank to a regulated mobile refueler. Several
commenters suggested that operators may prepare multi-facility SPCC
Plans that combine common elements (such as structures, equipment,
inspections, integrity testing, secondary containment designs, and
response procedures), while retaining site-specific information; these
commenters urge EPA to clarify that using a single Plan for multiple
locations does not force facilities to be considered a single facility
for FRP purposes.
b. Response to Comments
    As described in the hypothetical scenario (72 FR 58387, October 15,
2007), the Agency reiterates that an owner or operator of an oil
production facility may aggregate some or all of his leases into one
Plan, at his discretion, whether or not they are associated with the
same oil or gas field. Thus, this practice is consistent with the
amended definition of facility being promulgated by this action.
    With respect to the other comments submitted on how the definition
of facility may affect various types of facilities, EPA agrees that
wind power plants, whether spread over large or small areas and which
may involve multiple landowners, may be appropriately defined as single
or multiple facilities, depending on the circumstances, at the owner or
operator's discretion. Such facilities may be included in single or
multiple facility SPCC Plans. EPA also generally agrees with the
commenter that a petroleum refinery owner or operator may, at his
discretion, decide that remediation activities at an operating
petroleum refinery constitute a separate facility. Furthermore, EPA
agrees with the commenter that the Agency does not regulate the
transfer of fuel at an exempt facility. However, once the fuel is
transferred to a regulated container at an otherwise regulated SPCC
facility, the transfer activity becomes subject to the SPCC
requirements.
    Finally, as noted previously, the definition of facility determines
the applicability for all purposes under part 112. Thus, once an owner
or operator defines the extent of his facility, that definition
determines applicability for both SPCC and FRP purposes. The owner or
operator may, at his discretion, create a Plan that includes more than
one site, and define it as one facility which pertains to both FRP and
SPCC applicability. An owner or operator may also combine multiple
facilities into a single SPCC Plan, combining common elements, while
retaining facility-specific information (a multi-facility Plan). While
the Plan may encompass multiple facilities, the applicability of SPCC
and FRP requirements is determined by the extent of each individual
facility. The amendment to the definition of facility and the
clarifications described in this action should not be viewed as a
deterrent to the use of multi-facility SPCC Plans, a concern expressed
by operators in the oil production sector.
3. Alternative Options Considered
    In developing the amendments finalized in this notice, EPA
considered alternatives for addressing the definition of facility,
including taking no action, and addressing concerns only through
guidance. No comments were received on these specific alternative
options. EPA also requested comments on other alternatives that could
serve to address the needs of the regulated community, while at the
same time maintain appropriate levels of environmental protection.
a. Comments
    A commenter suggested removing the terms ``* * * property, parcel,
lease * * *'' from the definition of facility because the commenter
believes these terms complicate and confuse the definition. Another
commenter urged EPA to state that the determination of a ``facility''
for the purpose of preparing an SPCC Plan does not preclude the
operator from making a different determination of the scope of the
facility for the purposes of reporting or planning under any other
Federal or state statute. Other commenters recommended that EPA clarify
that a lease does not necessarily define a facility. Another commenter
also requested that EPA clarify that the definition of facility
excludes DOT and U.S. Coast Guard (USCG) components. Still another
commenter suggested that EPA codify the litigation settlement language
either as rule amendments or an appendix to the rule. Finally, one
commenter recommended that EPA give 120 days to a facility owner or
operator to resolve any compliance concerns, including a disputed
facility determination.
b. Response to Comments
    EPA disagrees with the suggested edit to remove the terms ``* * *
property, parcel, lease * * *'' from the definition of facility. Unlike
the commenter, the

Agency believes that these terms serve as clarifying examples of what
may constitute a facility.
    EPA agrees that the definition of facility, as defined in Sec.
112.2, applies only for purposes of part 112, and not for purposes of
any other Federal or state statute. However, this would not prevent the
owner or operator of a facility from defining the facility boundaries
in the same way that he defines it to comply with other regulations.
    EPA clarifies that a lease may, at the owner or operator's
discretion, constitute a facility, but does not necessarily create a
facility. According to the definition, contiguous or non-contiguous
buildings, properties, leases, structures, installations, pipes, or
pipelines under the ownership or operation of the same person may be
considered separate facilities. The definition further lists several
site-specific factors, including, but not limited to, ownership or
operation of buildings, structures, and equipment on the same site and
types of activity at the site.
    Generally, a facility for SPCC purposes excludes components which
are not subject to EPA's jurisdiction, but are subject to the
jurisdiction of other agencies, such as DOT or USCG. However, EPA and
DOT recognize that in certain situations, dual jurisdiction has been
applied to certain components of a facility, and that this approach can
pose confusion to the regulated community. EPA and DOT thus are
currently working to minimize overlapping regulation in accordance with
their 1971 MOU regarding agency jurisdiction (36 FR 24080, November 24,
1971) and will publish the results of that effort in the Federal
Register at a later date. For more information, please refer to the
proposed rule Federal Register notice (72 FR 58419, October 15, 2007).
    EPA believes that this action addresses the facility definition
issue in the settlement of the 2002 SPCC rule litigation, because in
the amended definition, EPA clarifies that only this definition is used
to determine whether a facility is subject to 40 CFR part 112. EPA also
has stated in this preamble that the positions that EPA has taken in
the July 2002 SPCC rule litigation settlement are still the Agency's
existing positions.
    Finally, EPA disagrees that owners or operators of SPCC regulated
facilities should be given 120 days to address any possible compliance
concerns, including but not limited to, differences of opinion on a
facility determination. Whether or not a total or partial Plan is
needed, or whether an existing SPCC Plan should be amended is a
compliance issue, subject to the provisions of Sec.  112.1(f) or Sec.
112.4(e) and (f). Both of these sections provide adequate time for
appeal from an initial decision of the Regional Administrator to the
Administrator. Therefore, a period of 120 days is not included in this
final rule to allow the owner or operator to resolve compliance issues.

E. Facility Diagram

    Section 112.7(a)(3) of the SPCC rule requires that a facility owner
or operator include in his SPCC Plan a facility diagram that identifies
the location and contents of oil containers, connecting piping, and
transfer stations. EPA is amending the SPCC rule to provide additional
flexibility to the requirement that the facility diagram include the
location and contents of each container.
    EPA is also requiring that certain containers and piping, exempted
from SPCC requirements in this action, be identified on the facility
diagram and marked as ``exempt.'' This includes intra-facility
gathering lines subject to the requirements of 49 CFR part 192 or 195
as described in Sec.  112.1(d)(11); and any produced water container,
as defined in Sec.  112.2, that meets the requirements at Sec.
112.9(c)(6)(i) as described in Sec.  112.1(d)(12). This will assist
facility and EPA personnel in defining the jurisdictional boundaries at
the facility and provide emergency response personnel with information
that can be used to identify hazards during a spill response activity.
EPA has not required that all containers exempted from the rule be
marked on the facility diagram because in many cases it would be
burdensome. For example, the mobility of motive power containers and
mobile/portable containers with a capacity of less than 55 U.S. gallons
would make them difficult to track on a facility diagram. For more
information on these exemptions, see sections V.L and V.M of this
preamble.
1. Revision to the Facility Diagram Requirement Regarding Mobile or
Portable Containers
    EPA is amending Sec.  112.7(a)(3) to clarify that the facility
diagram must include all fixed (that is, not mobile or portable)
containers. For any mobile or portable containers (such as drums or
totes), a facility owner or operator must mark the area of the facility
on the diagram where such containers are stored. The facility owner or
operator may mark the number of containers, contents and capacity of
each container either on the facility diagram, or provide a separate
description in the SPCC Plan. If the total number of mobile or portable
containers changes, the owner or operator can include an estimate in
the Plan of the number of containers, the anticipated contents, and
capacities of the mobile or portable containers maintained at the
facility.
    EPA believes that the revision to the facility diagram requirements
for mobile or portable containers will simplify the process for
developing a facility diagram by allowing for a general description of
both the area of the facility where they are located and of their
contents, rather than representing each container individually.
a. Comments
    Many commenters expressed general support for the amendments, while
one commenter opposed the amendment because of increased cost estimates
for facility diagram preparation. Several other commenters requested
that EPA clarify, via rule language, which containers are considered
mobile or portable (such as 55-gallon drums, intermodal bulk
containers, mobile/portable maintenance tanks, and other small
containers put into place and later moved). Other commenters suggested
that EPA require only mobile or portable storage container locations
that are ``fixed,'' ``permanent,'' or ``dedicated'' be included in the
diagram. These commenters assert that internal facility tracking of
these containers is sufficient for planning and emergency response
purposes, that single drums are not reasonable to track on a diagram,
and that their inclusion on the diagram does not provide increased
environmental protection.
    Several additional approaches were suggested by commenters. One
commenter suggested that EPA allow facility operators to use ``range
reporting'' for the number of containers and their quantities that may
be in use at the facility. One commenter recommended allowing the use
of an administrative alternative, such as a computerized tracking
system, to provide real-time information on the quantity, type,
location, and person responsible for mobile/portable containers. One
other commenter suggested that Sec.  112.5 should be amended to specify
other examples of Plan changes that do not require re-certification.
Finally, one commenter supported the use of facility diagrams for SPCC
Plans that have already been prepared for other programs.
b. Response to Comments
    The Agency agrees with those commenters that support the proposal,

and believes that clarification and simplification of these
requirements will reduce costs and facilitate compliance. Thus, EPA
disagrees with the commenter who argued, without any supporting data,
that the facility diagram amendments would increase the cost of
preparing a facility diagram. In addition, the Agency does not believe
that it needs to clarify, via rule language, which containers are
considered mobile or portable. The Agency has already provided examples
of mobile/portable containers in Section 4.4.4: Secondary Containment
Requirements for Mobile/Portable Containers of the SPCC Guidance for
Regional Inspectors (for example, 55 gallon drums, skid tanks, totes,
and intermodal bulk containers). Some oil refinery tank trucks and
fueling trucks dedicated to a particular facility (such as a
construction site, military base, or similar large facility) may fall
under this category.
    The Agency also disagrees with those commenters regarding the need
to include on the facility diagram only those mobile or portable
container locations that are ``fixed,'' ``permanent,'' or
``dedicated.'' The Agency believes and clearly stated in preamble to
the proposed rule (72 FR 58378, October 15, 2007) that mobile or
portable containers should be marked on the facility diagram in their
out-of-service or designated storage area, primary storage areas, or
areas where they are most frequently located, and believes that the
final rule language accomplishes this purpose.
    The Agency agrees with the comments supporting the flexibility of
reporting an area on the facility diagram (such as a drum storage area)
for these containers, as well as providing reasonable estimates
(including ranges) for the potential number of mobile or portable
containers, types of oil, and anticipated capacities in the SPCC Plan.
The Agency believes that these estimates can be effectively used to
determine the applicability of the rule thresholds and provide a
general description of the mobile/portable containers in the Plan; this
clarification may be particularly useful when the number of containers
change frequently at the facility.
    While the idea of an internal computerized tracking system,
utilizing container bar codes to provide real-time information on the
quantity, type, location, and person responsible for oil containers of
55 U.S. gallons or greater may suit some facilities, the Agency does
not believe it can reasonably require such a system for all SPCC-
regulated facilities. However, EPA believes that the amendments allow a
facility owner or operator to implement such a system to assist in
their tracking of mobile or portable containers, and to use it to meet
the SPCC Plan requirement for these types of containers, if desired.
    Also, the Agency does not believe it needs to expand the list of
examples of compliance activities that do not require PE certification,
as including every potential scenario is unreasonable. Owners or
operators can refer to the existing list of changes that may require PE
certification in Sec.  112.5 and to the SPCC Guidance for Regional
Inspectors.
    Finally, the Agency does not require that a facility diagram be
developed exclusively for the SPCC Plan, and does not agree that it
needs to amend the rule language to allow for this. A facility diagram
prepared for a state or Federal plan (including the FRP requirements
under Sec.  112.20) or for other purposes (for example, construction
permits, facility modifications, or other pollution prevention
requirements) may be used in an SPCC Plan if it meets the requirements
of the SPCC rule (for example, it includes the contents and capacities
of containers; transfer areas; and piping). Thus, EPA believes that the
existing regulations allow for a facility diagram developed for other
programs to be used, which not only facilitates compliance with this
requirement, but also reduces the cost of diagram preparation.
2. Indicating Complicated Areas of Piping or Oil-Filled Equipment on a
Facility Diagram
    A facility diagram must also include all transfer stations and
connecting pipes (Sec.  112.7(a)(3)). Associated piping and oil-filled
manufacturing equipment present at an SPCC-regulated facility may be
difficult to clearly present on a facility diagram, due to their
relative location, complexity, or design. Therefore, in the October
2007 proposal (72 FR 58378, October 15, 2007), EPA requested comment on
whether a rule revision is appropriate to provide further clarification
on how complicated areas of piping or oil-filled equipment may be
indicated on the facility diagram.
    EPA believes that the SPCC Guidance for Regional Inspectors
adequately addresses the flexibility inherent in the existing SPCC rule
related to indicating these areas on a facility diagram, and that no
additional rule amendment is necessary.
a. Comments
    Several commenters expressed general support for an amendment to
the regulations to provide further clarification on how piping or oil-
filled equipment can be addressed on the facility diagram. These
commenters noted the difficulties associated with including oil-filled
equipment or piping detail on a diagram, and requested that EPA offer
other options. Suggestions included a table identifying the oil-filled
equipment and associated storage capacities; flow charts; piping
inventories; summary statements; drawings; PE-required details;
electrical one-line diagrams; and other means. One commenter suggested
that the clarifications on flexibility provided in the SPCC Guidance
for Regional Inspectors on the way the facility diagram can be drawn
should be made part of the rule itself.
    Another commenter stated that oil-filled equipment located in
buildings with multiple floors, or in process areas with numerous other
pieces of equipment, should not be required to be shown in the facility
diagram, because including such detail is impractical for a complex
site (such as a petroleum refinery or chemical plant). The commenter
recommended that EPA limit the diagram requirements exclusively to
fixed bulk oil storage containers. Other commenters expressed
difficulties with depicting complex hydraulic and lubricant tubing;
older equipment attributes; and indoor and/or outdoor piping
(particularly at older facilities) that pose no risk of discharge to
navigable waters or adjoining shorelines.
b. Response to Comments
    The Agency interprets the requirement at Sec.  112.7(a)(3) to allow
an owner or operator of a facility to represent such systems in a less
detailed manner on the facility diagram in the SPCC Plan, as long as
the information is contained in more detailed diagrams of the systems
or is contained in some other form and such information is maintained
elsewhere at the facility and this location is referenced in the SPCC
Plan. The SPCC Guidance for Regional Inspectors describes the Agency's
interpretation of the requirements for a facility diagram that allow an
owner or operator to determine the scale and level of detail shown on a
facility diagram according to the needs and complexity of the facility.
Thus, the Agency agrees with those commenters who believe that the
guidance adequately addresses the flexibility for complying with these
requirements. The guidance document illustrates how the current
regulatory requirement allows flexibility in the way the facility
diagram is drawn to include complex

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

F. Loading/Unloading Racks

    Tank car and tank truck loading/unloading racks are subject to
specific requirements in Sec.  112.7(h), including sized secondary
containment. EPA is finalizing a definition for the term ``loading/
unloading rack,'' which governs whether a facility is subject to Sec.
112.7(h). Under this amendment, the requirements described at Sec.
112.7(h) only apply to areas of a regulated facility where a loading/
unloading rack, as defined in Sec.  112.2, is located.
    A loading/unloading rack can be located at any type of facility;
however, the loading and unloading areas associated with oil production
tank batteries and farms generally do not have the equipment described
in the definition of loading/unloading rack finalized in this action.
Therefore, EPA is specifically excluding oil production facilities and
farms from the requirements at Sec.  112.7(h).
1. Loading/Unloading Rack Definition
    EPA is finalizing the following definition for ``loading/unloading
rack'' under Sec.  112.2: ``Loading/unloading rack means a fixed
structure (such as a platform, gangway) necessary for loading or
unloading a tank truck or tank car, which is located at a facility
subject to the requirements of this part. A loading/unloading rack
includes a loading or unloading arm and may include any combination of
the following: Piping assemblages, valves, pumps, shut-off devices,
overfill sensors, or personnel safety devices.'' This definition is a
slightly modified version of the definition proposed in October 2007.
In developing the proposed definition, EPA reviewed information from a
number of different sources and reviewed various types of equipment
considered components of loading racks (see 72 FR 58378, October 15,
2007). The Agency sought comment on the proposed definition of
``loading/unloading rack'' and requested suggestions on any other
definitions for ``loading/unloading rack'' that would be more suitable.
EPA also requested a description of a ``loading/unloading arm.''
a. Comments
    Many commenters expressed general support for the proposed
definition of loading/unloading rack. However, other commenters opposed
the proposed definition, suggesting that it is too broad and
consequently includes many loading/unloading areas or equipment that
would not normally be components of ``racks,'' such as storage
containers equipped with safety platforms, piping assemblages, valves,
pumps, shut-off devices, overfill sensors, or personnel safety devices.
One commenter expressed concern that the proposed definition of loading
rack could include a facility ``where filling/emptying is accomplished
by direct connection to the same tanks.'' Another commenter expressed
concern that, by not defining ``loading arm,'' EPA might inadvertently
cause hoses used at loading racks to be identified as loading/unloading
arms. Still another commenter stated that, in the state of Alaska, many
rural facilities do not have a gangway and a fixed loading arm, so the
proposed definition would leave these facilities not subject to Sec.
112.7(h).
    Several commenters emphasized that a loading arm is an essential
component of a loading/unloading rack, and that EPA's definition should
be modified to reflect this fact. A commenter recommended that
accessories, such as piping assemblages, valves, pumps, shut-off
devices, overfill sensors, personnel safety devices be deleted from the
definition, as these may or may not be a part of the rack, and one or
more of these devices (for example, overfill sensors) are typically
present on most tanks. The commenter also recommended that the
definition of loading/unloading rack be narrowed to cover only
permanently installed platforms, gangways or loading/unloading arms
used in the loading or unloading of tack trucks or tank cars.
    Other commenters requested that EPA more clearly define the
components, such as platforms, gangways, and loading/unloading arms,
and confirm that flexible hoses used at a loading/unloading rack should
not be considered loading/unloading arms. Two commenters provided a
suggested definition for ``loading/unloading arm.'' Specifically, these
commenters suggested that ``loading/unloading arm'' be defined as
``consisting of at least two articulated parts that are connected in
such a way that relative movement is feasible to transfer product via
top or bottom loading/unloading to a transportation vehicle.''
    One commenter suggested that the definition of loading/unloading
rack be changed to identify examples of what are not loading racks
(i.e., a nozzled connection to a tank, connection consisting of a
flexible hose, a single connection with a valve, or a loading structure
that is not overhead). This commenter also requested that EPA remove
references to ``unloading'' from the definition.
    Two commenters suggested a definition involving a throughput
threshold for an area to be considered a loading rack (for example,
limiting ``racks'' to those loading/unloading facilities with an annual
average of 100 trucks, on a five-year rolling average; a throughput
threshold of 800,000 gallons per month, based on the relatively low
likelihood of a spill when petroleum product is transferred only
occasionally). Another commenter suggested that EPA narrow the
definition of loading/unloading racks by associating the definition
with the flow-rate capacities of the associated pump systems, and
clarify that loading/unloading racks are not typically associated with
oil-filled operating equipment.
    One commenter suggested that small tank transfers--that is, using a
small transfer hose to fill a shop-built tank, and therefore having the
potential of only a small release--should be viewed as a loading area
and be subject to Sec.  112.7(c), whereas large tank transfers--that
is, using a larger hose equipped with a hose coupler and a stationary
pump to transfer product at a rate greater than 50 gallons per minute,
with the consequent likelihood of a larger release--should be viewed as
a loading rack and be subject to Sec.  112.7(h). Another commenter
suggested a definition that would require loading/unloading racks to be
used only for transportation-related tank trucks, rail cars, or
vessels, not intra-facility vehicles.

    Finally, one commenter suggested that EPA clarify that the
requirement applies only to tank cars or tank trucks located within the
loading/unloading rack and not to tank cars or trucks waiting to enter
the loading/unloading rack.
b. Response to Comments
    EPA agrees that the proposed definition of ``loading/unloading
rack'' should be refined to provide clarity and address the concerns
about the scope of the definition. Therefore, EPA has modified the
proposed definition to provide more clarity by addressing concerns that
a loading/unloading arm is an essential component of a loading rack,
while describing other components that may be found at a loading or
unloading rack.
    The Agency does not intend this definition to include simple
loading or unloading configurations, but rather to only include the
associated equipment and structure associated with loading/unloading
arms as part of a rack. Equipment present at a loading/unloading area
where a pipe stand connects to a tank car or tank truck via a flexible
hose, which is not equipped with a loading or unloading arm, is not
considered a loading/unloading rack as defined in this action. However,
the presence of flexible hoses on oil transfer equipment does not
always indicate that the equipment is exempt from the definition of
loading/unloading rack, as some top and bottom loading/unloading racks
are made up of a combination of steel loading arms connected by
flexible hosing.
    EPA believes that providing the list of equipment usually
associated with a loading/unloading rack in the definition will be
useful for the owner or operator and the PE in determining the
applicability of the rule requirements at Sec.  112.7(h) to the
facility. The Agency agrees with commenters that the key to the
definition is the presence of a loading or unloading arm in association
with a permanent structure and other equipment. Thus, the Agency has
added the phrase ``a loading/unloading rack includes a loading or
unloading arm'' in the definition to illustrate this point.
    A definition for ``loading/unloading arm'' was not proposed.
However, EPA understands, consistent with comments, that a loading/
unloading arm is typically a movable piping assembly that may include
fixed piping or a combination of fixed and flexible piping, typically
with at least one swivel joint (that is, at least two articulated parts
that are connected in such a way that relative movement is feasible to
transfer product via top or bottom loading/unloading to a tank truck or
rail car). However, certain loading/unloading arm configurations
present at loading racks may include a loading/unloading arm that is a
combination of flexible piping (hoses) and rigid piping without a
swivel joint. In this case, a swivel joint is not present on the
loading arm because flexible piping is attached directly to the rigid
piping of the loading arm and the flexible hose provides the movement
needed to conduct loading or unloading operations in lieu of the swivel
joint.
    Commenters raised concerns that, because of the new loading/
unloading rack definition, many transfer operations (particularly those
at rural facilities with no gangways or fixed loading arms) will not be
regulated under the SPCC rule. The Agency disagrees with this
assertion. Although the Agency intends the definition of loading/
unloading rack to clearly delineate those facilities subject to the
Sec.  112.7(h) regulatory requirements (such as sized secondary
containment), any otherwise regulated SPCC facility will still be
subject to the general secondary containment requirements under Sec.
112.7(c) for all areas where oil is transferred into or out of any
regulated container.
    EPA received several alternatives to the definition of loading/
unloading rack contained in the October 2007 proposal. EPA considered
these alternative definitions in developing the definition for loading/
unloading rack promulgated in this notice. Specifically, several
commenters recommended that the definition of loading/unloading rack be
based on throughput, offering various throughput numbers as a method of
defining transfer operations that would be subject to the Sec.
112.7(h) requirements. However, these suggestions included limited
supporting data. The complexity in determining a rack's throughput for
a given time period would add additional burden on the owner and
operator of a facility. Furthermore, there is no basis for deciding on
a specific time period for this determination. Thus, EPA is not basing
its definition of loading/unloading rack on a rack's throughput. Other
commenters suggested that the definition provide examples only of
equipment that should not be considered a loading or unloading rack.
The Agency believes that it is much clearer to define the equipment
typically associated with a loading or unloading rack than to provide a
list of equipment that are not considered a loading or unloading rack.
Most of the suggested definitions, however, focused on the presence of
a loading arm as indicative of a loading or unloading rack. Many of the
definitions focused on the presence of a structure and a list of
related equipment. EPA agrees with many of the concepts illustrated in
the alternative definitions received from commenters. Thus, EPA is
finalizing an equipment-based definition, as proposed, as a clearer
method for identifying transfer activities subject to the requirements
of Sec.  112.7(h).
    Commenters suggested that EPA delete reference to the accessories,
such as piping assemblages, valves, pumps, shut-off devices, overfill
sensors, and personnel safety devices from the definition, as these may
or may not be a part of the rack, and one or more of these devices
(such as overfill sensors) are typically present on most tanks. The
definition is not intended to address oil containers (such as tanks);
the list of equipment specifically addresses equipment associated with
loading/unloading rack structures. EPA believes that providing examples
of equipment usually associated with loading/unloading racks would be
useful for the owner or operator of a facility, as well as the PE, for
determining the applicability of the definition.
    EPA also is clarifying in this notice that tank cars and tank
trucks are only subject to the requirements of Sec.  112.7(h) when
conducting loading or unloading operations associated with a loading/
unloading rack as defined in this action. Otherwise, they are subject
to the general secondary containment requirements at Sec.  112.7(c). In
addition, the definition finalized in this action typically will not
include oil-filled equipment; however, transfers associated with oil-
filled operational equipment where a rack is not present are still
required to meet the general containment requirements of Sec.
112.7(c).
2. Requirements for Loading/Unloading Racks
    Although the title of Sec.  112.7(h) refers to ``loading/unloading
rack,'' the text of the requirement referred to ``loading/unloading
areas.'' Therefore, to provide additional clarity, EPA is changing all
references from loading/unloading ``area'' to loading/unloading
``rack.'' For example, Sec.  112.7(h)(1) is modified as follows:
``Where loading/unloading rack drainage does not flow into a catchment
basin or treatment facility designed to handle discharges, use a quick
drainage system for tank car or tank truck loading/unloading racks. You
must design any containment system to hold at least the maximum
capacity of any single compartment of a tank car or tank truck loaded
or unloaded at the facility.'' Section 112.7(h)(2) is similarly

modified and includes a technical correction of the word ``break'' to
``brake'' to correct a typographical error.
    In the preamble to the July 2002 amendments to the SPCC rule (67 FR
47042, July 17, 2002), EPA stated that Sec.  112.7(h) ``applies to
containers which are aboveground (including partially buried tanks,
bunkered tanks, or vaulted tanks) or completely buried (except those
exempted by this rule)'' (67 FR 47110, July 17, 2002). Thus, this
statement seems to indicate that Sec.  112.7(h) does not apply to a
loading/unloading rack (or any other transfer area) associated with a
container that is exempted from the rule, such as an Underground
Storage Tanks (USTs) that are subject to all of the technical
requirements of 40 CFR part 280 or a state program approved under part
281. As described in the October 2007 proposal (72 FR 58378, October
15, 2007), EPA has reconsidered this position because a transfer to or
from such a container at an SPCC-regulated facility is a potential
source of discharge of oil into navigable waters or adjoining
shorelines. Additionally, because a loading/unloading rack, or other
transfer area, associated with an UST is not typically part of the UST
system, it is not subject to all of the technical requirements of 40
CFR part 280 or 281. Therefore, EPA believes that such a loading/
unloading rack should be regulated under the SPCC regulations in the
same manner as any other transfer equipment or transfer activity
located at an otherwise regulated SPCC facility.
a. Comments
    Two commenters expressed general support for the amendments to
Sec.  112.7(h). However, one commenter suggested exempting loading/
unloading activity from SPCC regulation, because standard industry
practice is to place the connection valve inside a secondary
containment area during loading/unloading. Other commenters suggested
that EPA eliminate the sized secondary containment requirements for
loading/unloading racks. Another commenter requested that EPA codify
the settlement language regarding loading/unloading rack (American
Petroleum Institute v. Leavitt, No. 1:02CV02247 PLF and Marathon Oil
Co. v. Leavitt, No. 1:02CV02254 PLF). One other commenter suggested
revised text for Sec.  112.7(h) focusing on special control measures
for portions of the facility with a higher likelihood of a discharge as
described in Sec.  112.1(b) (such as transfer areas where containers
are frequently open for filling, or where couplings are frequently
connected and disconnected from containers).
    With regard to EPA's reconsideration of the applicability of Sec.
112.7(h) to a loading/unloading rack associated with a container that
is exempted from the rule, such as USTs that are subject to all of the
technical requirements of 40 CFR part 280 or a state program approved
under 40 CFR part 281, a commenter disagreed and stated that the
provisions associated with 40 CFR 280.30(a) address spill prevention.
b. Response to Comments
    EPA did not propose: (1) To exempt (nor does the Agency agree that
the final rule should exempt) loading or unloading activities conducted
at loading/unloading racks from the SPCC rule or (2) that such loading/
unloading racks be exempted from the sized secondary containment
requirements. Although the industry practices described by the
commenter may be used to meet the rule requirements that exist for
loading and unloading activities, these do not provide adequate
justification to exempt this equipment from the SPCC regulation.
    Commenters also requested that EPA codify the settlement language
on this issue. EPA has not done this; however, the modification to
change the word ``area'' to ``rack'' in Sec.  112.7(h) is consistent
with EPA's notice in the Federal Register in May 2004, which noted that
Sec.  112.7(h) only applies at facilities with loading and unloading
``racks'' (69 FR 29728, May 25, 2004). EPA also maintains its position,
as clarified in a letter to the Petroleum Marketers Association of
America (PMAA), that loading and unloading activities that take place
beyond the rack area are not subject to the requirements of Sec.
112.7(h), but are subject, where applicable, to the general secondary
containment requirements of Sec.  112.7(c) (Letter to Daniel Gilligan,
President, Petroleum Marketers Association of America, from Marianne
Lamont Horinko, Assistant Administrator, Office of Solid Waste and
Emergency Response, EPA, May 25, 2004 and 69 FR 29728, May 25, 2004).
    EPA also does not agree with the commenter who suggested that
further revisions be made to the rule requirements at Sec.  112.7(h) to
address special control measures for portions of the facility with a
higher likelihood of a discharge as described in Sec.  112.1(b). The
Agency believes the current requirements are appropriate to address a
discharge at the loading/unloading rack. The clarifications to the
language in Sec.  112.7(h) finalized in this action address the
questions that have been raised by the regulated community on how these
rule provisions apply to loading/unloading racks and do not apply to
areas beyond the ``rack.''
    Finally, one commenter stated that the provisions associated with
40 CFR 280.30(a) address spill prevention and thus, the requirements
for loading/unloading racks should not apply to exempt USTs. While EPA
recognizes that this provision (40 CFR 280.30(a)) describes spill and
overfill control requirements when USTs are being filled, EPA still
believes that the loading/unloading requirements should apply to these
exempted USTs, for the reasons described earlier. However, EPA would
note that to the extent that 40 CFR 280.30(a) addresses SPCC
requirements, these measures can be described in the SPCC Plan, as
appropriate. Therefore, transfers at loading/unloading racks and
transfer areas associated with exempted USTs are considered regulated
activities at an otherwise regulated SPCC facility. In addition,
exempted USTs, at an otherwise regulated SPCC facility, equipped with a
loading/unloading rack as defined in this action, are subject to the
requirements of Sec.  112.7(h). Also, exempted USTs, at an otherwise
regulated SPCC facility, equipped with a transfer area (for example,
dispenser or other transfer equipment) are subject to the requirements
of Sec.  112.7(c). Non-rack transfer areas are required to provide only
general secondary containment for the most likely discharge, as
discussed in Section V.H in this action, and may include active
containment measures, such as response action or sorbent deployment.
This interpretation is consistent with the approach EPA has taken with
other exempt containers at an otherwise regulated SPCC facility. For
example, in the preamble to the December 2006 amendments, EPA noted
that although the amendment provided an exemption for motive power
containers, the oil transfer activities to or from motive power
containers occurring within an SPCC-regulated facility continue to be
regulated (71 FR 77283, December 26, 2006). Consistent with the
preamble to the December 2006 amendments, the Agency is therefore
clarifying that at an SPCC-regulated facility, Sec.  112.7(h)
(including the sized secondary containment provision) applies to
transfers at any loading/unloading rack associated with any type of
container, including one that is exempted from the rule, as long as the
loading/unloading rack meets the definition finalized in this notice. A
transfer not associated with a loading or unloading rack is subject to
the general secondary containment provision at Sec.  112.7(c). No

rule change is needed to clarify this point, because a rule amendment
to exempt a loading/unloading rack associated with an UST was never
proposed or finalized. This clarification is intended to correct
preamble language that was inconsistent with the Agency's position on
other exempt containers and their associated transfer activities.
3. Exclusions
    EPA is specifically excluding onshore oil production facilities and
farms from the loading/unloading rack requirements at Sec.  112.7(h)
because the Agency and commenters alike believe that loading and
unloading racks are not typically associated with these types of
facilities. EPA is exempting these facilities from the requirements of
Sec.  112.7(h) for clarity in order to avoid confusion for owners or
operators of oil production facilities or farms. At other facilities
that likewise do not have a loading/unloading rack, the provisions at
Sec.  112.7(h) similarly do not apply.
    Oil transfer areas, such as loading/unloading areas at farms and
oil production facilities that are subject to the SPCC rule,
nevertheless remain subject to the general secondary containment
requirements of Sec.  112.7(c). As EPA states in the SPCC Guidance for
Regional Inspectors, ``Areas where oil is transferred but no loading or
unloading rack is present are subject to Sec.  112.7(c), and thus
appropriate containment and/or diversionary structures are required.
EPA does not require specifically sized containment for transfer areas;
however, containment size must be based on good engineering practice.''
a. Comments
    Several commenters expressed general support for the exclusions. In
addition, one commenter requested that EPA also exclude agricultural
retailers from Sec.  112.7(h) because they are already subject to FIFRA
regulations.
b. Response to Comments
    The Agency agrees that it is appropriate to exclude onshore oil
production facilities and farms from the loading/unloading rack
requirements at Sec.  112.7(h). Commenters confirmed EPA's
understanding that there are few, if any, loading/unloading racks at
oil production facilities, and that agricultural oil and fuel transfers
at farms are generally not associated with loading/unloading racks.
However, if an agricultural retail facility conducts fuel transfers
with equipment that meets the definition of a loading/unloading rack,
then this facility would be subject to the loading/unloading rack
requirements at Sec.  112.7(h). The Agency disagrees with the commenter
who requested that agricultural retailers also be excluded for the
loading/unloading requirements of Sec.  112.7(h), because the FIFRA
requirements do not provide spill prevention requirements at a level
equivalent to the SPCC rule.
4. Alternative Option Considered
    EPA considered not providing any amendments to the SPCC rule
related to loading/unloading racks. Under this approach, EPA would not
provide a regulatory definition for loading/unloading rack or an
exclusion for farms and onshore oil production facilities from the
loading/unloading rack requirements at Sec.  112.7(h), but would
instead continue to follow the interpretation of loading/unloading
rack, as stated in the SPCC Guidance for Regional Inspectors and the
May 2004 Federal Register notice. However, EPA did not choose this
approach because the Agency believes it was important to address some
of the confusion and questions raised by the regulated community.
a. Comments
    Several commenters indicated that no rule change is necessary.
b. Response to Comments
    As noted above, EPA disagrees with the commenters and has finalized
the new definition and associated editorial changes to the rule to
provide additional clarity in describing the type of equipment and
facilities subject to the loading/unloading rack requirements under
Sec.  112.7(h).

G. Tier I Qualified Facilities

    In December 2006, EPA finalized an amendment to the SPCC rule to
allow the owner or operator of a qualified facility to self-certify his
SPCC Plan. The Agency is amending the SPCC rule to provide an
additional option for the owners and operators of a subset of qualified
facilities that meet an additional criterion to complete and implement
a streamlined, self-certified SPCC Plan template (promulgated as
Appendix G to 40 CFR part 112), in order to comply with the
requirements of the SPCC rule. For clarity, EPA is now using the term
``Tier II qualified facility'' to describe those qualified facilities
as identified by and subject to the requirements promulgated in the
December 2006 SPCC rulemaking (71 FR 77266, December 26, 2006) and the
term ``Tier I qualified facility'' for a new subset of these qualified
facilities. To qualify as a Tier I qualified facility in addition to
meeting the eligibility criteria for a Tier II qualified facility, a
facility must also have no individual aboveground oil storage
containers with a capacity greater than 5,000 U.S. gallons.
    A Tier II qualified facility is one that meets the criteria
described in the December 2006 amendments to the SPCC rule (71 FR
77266, December 26, 2006): a facility that has an aggregate aboveground
oil storage capacity of 10,000 U.S. gallons or less; and has had no
single discharge as described in Sec.  112.1(b) exceeding 1,000 U.S.
gallons or no two discharges as described in Sec.  112.1(b), each
exceeding 42 U.S. gallons within any twelve-month period in the three
years prior to the SPCC Plan self-certification date, or since becoming
subject to 40 CFR part 112 if the facility has been in operation for
less than three years (this criterion does not include discharges as
described in Sec.  112.1(b) that are the result of natural disasters,
acts of war, or terrorism). EPA is now further streamlining the SPCC
requirements for certain qualified facilities that meet an additional
criterion.
    The following table illustrates the tiers, criteria, and options
for qualified facilities and all others as described in this notice:

------------------------------------------------------------------------
               Qualified facilities*
--------------------------------------------------- All other facilities
           Tier I                    Tier II
------------------------------------------------------------------------
10,000 U.S. gallons or less aggregate aboveground   More than 10,000
 oil storage capacity; and                           U.S. gallons
                                                     aggregate
                                                     aboveground oil
                                                     storage capacity,
                                                     or
------------------------------------------------------------------------

Within any twelve-month period, three years prior   Within any twelve-
 to the Plan certification date, or since becoming   month period, three
 subject to the SPCC rule if in operation for less   years prior to the
 than three years, there has been:                   Plan certification
(1) No single discharge of oil to navigable waters   date, or since
 or adjoining shorelines exceeding 1,000 U.S.        becoming subject to
 gallons; and                                        the SPCC rule if in
(2) No two discharges of oil to navigable waters     operation for less
 or adjoining shorelines each exceeding 42 U.S.      than three years,
 gallons**; and                                      there has been:
                                                    (1) A single
                                                     discharge of oil to
                                                     navigable waters or
                                                     adjoining
                                                     shorelines
                                                     exceeding 1,000
                                                     U.S. gallons; or
                                                    (2) Two discharges
                                                     of oil to navigable
                                                     waters or adjoining
                                                     shorelines each
                                                     exceeding 42 U.S.
                                                     gallons**; or
------------------------------------------------------------------------
No individual aboveground     Has individual        Owner or operator
 oil containers greater than   aboveground oil       eligible for
 5,000 U.S. gallons;           containers greater    qualified facility
                               than 5,000 U.S.       status, but decides
                               gallons; or           not to take the
                              Owner or operator      option;
                               eligible for Tier I
                               qualified facility
                               status, but decides
                               not to take the
                               option or chooses
                               to develop a
                               ``hybrid'' Plan;.
------------------------------------------------------------------------
Then: Complete and self-      Then: Prepare self-   Then: Prepare PE-
 certify Plan template         certified Plan in     certified Plan in
 (Appendix G to 40 CFR part    accordance with all   accordance with all
 112) in lieu of a full PE-    applicable            applicable
 certified Plan.               requirements of       requirements of
                               Sec.   112.7 and      Sec.   112.7 and
                               subparts B and C of   subparts B and C.
                               the rule, in lieu
                               of a PE-certified
                               Plan.
------------------------------------------------------------------------
* See Section V.M of this notice for more information on qualified
  facility eligibility criteria specific to the oil production sector.
** This criterion does not include discharges as described in Sec.
  112.1(b) that are the result of natural disasters, acts of war, or
  terrorism. Additionally, the gallon amount described in this criterion
  addresses the amount of the discharge that actually reaches navigable
  waters or adjoining shorelines.

1. Eligibility Criteria
    As proposed in October 2007, a Tier I qualified facility must meet
all of the eligibility criteria for qualified facilities promulgated by
EPA in December 2006 (71 FR 77266, December 26, 2006) with an
additional criterion: A maximum individual aboveground oil storage
container capacity of 5,000 U.S. gallons. EPA developed the Tier I
category based on an individual container capacity in order to link any
streamlined requirements with a reduced potential for oil discharge.
That is, the maximum individual aboveground container capacity
threshold is set at 5,000 U.S. gallons because this volume is
consistent with industry consensus standards that call for varying
levels of stringency based on container size and configuration. For
example, the Steel Tank Institute's SP001, Standard for the Inspection
of Aboveground Storage Tanks allows for periodic visual inspection
alone, with no requirement for the inspector to be professionally
certified, for containers of 5,000 U.S. gallons or less that are
equipped with a spill control measure and a continuous release
detection method. Furthermore, a facility with smaller storage
containers often has less complicated operations, is typically an end-
user of oil (does not distribute the oil further), is involved in few
oil transfers, and may have predominantly mobile or portable containers
with a few low-capacity fixed oil storage containers. Smaller
containers have a smaller potential maximum discharge size, and there
may be little or no piping associated with these small containers.
a. Comments
    Several commenters expressed general support for the eligibility
criterion. However, some commenters suggested increasing the container
capacity eligibility criterion to 10,000 gallons, while other
commenters suggested various other capacity thresholds. Several
commenters expressed support for a three-tiered approach to the
eligibility criteria for qualified facilities, with the use of a PE
only in cases where the tank capacity is above 20,000 gallons.
    One commenter recommended that criteria be introduced that take
into consideration a facility's proximity to environmentally sensitive
area(s) either by distance or some other logical means. Another
commenter suggested using actual oil storage volumes rather than
capacity to determine eligibility. Still another commenter suggested
that AFVOs that would solidify without heating be excluded from the
5,000 U.S. gallon maximum individual container capacity.
    One other commenter requested that EPA confirm that oil-filled
operational equipment is eligible for Tier I status. The commenter
noted concern that the definition of Tier I qualified facility in Sec.
112.3(g)(1) may cause confusion about whether facilities with oil-
filled operational equipment are eligible for the Tier I alternative,
and whether the 5,000 gallon cap applies to oil-filled equipment.
    Several commenters provided alternative suggestions to the
eligibility criteria for both tiers of qualified facilities. One
commenter suggested that the criterion for discharge history should be
more stringent and require that any discharge during the three-year
period prior to the Plan certification date disqualify a facility from
the self-certification option as either a Tier I or Tier II qualified
facility. The discharge history criterion does not include discharges
as described in Sec.  112.1(b) that are the result of natural
disasters, acts of war, or terrorism. One commenter requested that EPA
define the term ``terrorism'' in the explanation of the criteria to
ensure regional consistency.
    Commenters also requested raising the Tier II threshold above the
10,000 U.S. gallons aboveground oil storage capacity promulgated in the
December 2006 amendments (71 FR 77266, December 26, 2006).
    Finally, commenters suggested that the qualification criteria do
not benefit oil and gas production stakeholders because the oil storage
capacity thresholds are too low to allow these facilities to qualify to
develop either a self-certified Plan or a Plan following the template
in Appendix G.

b. Response to Comments
    The majority of commenters supported this approach with additional
suggestions. Several commenters suggested alternative thresholds to
consider for Tier I qualified facilities; however, these commenters did
not provide sufficient data to support increasing the thresholds beyond
the proposed Tier I threshold of 5,000 U.S. gallons for a single oil
storage container. Therefore, EPA is finalizing the Tier I qualified
facilities criterion to require a maximum individual oil container of
5,000 U.S. gallons.
    One commenter suggested considering proximity to sensitive
environments in determining eligibility as a qualified facility.
However, consideration of the impact of an oil discharge to the
environment is made when determining the applicability of the SPCC
regulation to the facility. Because the SPCC rule only applies to a
facility when it has a reasonable potential to discharge oil in
quantities that may be harmful to navigable waters or adjoining
shorelines, EPA does not believe that an additional criterion is
appropriate for an SPCC-regulated facility that may impact sensitive
environments.
    EPA also disagrees with the commenter who suggested that EPA use
the operational volumes of oil storage at the facility rather than the
shell capacity of the oil storage containers. The applicability of the
SPCC regulation to a facility has always been based on shell capacity
when calculating total oil storage capacity of the facility and the
same oil storage capacity is then considered in determining
applicability of the self-certification SPCC Plan for the facility. The
operational volume at a facility may change frequently and therefore
create confusion on which SPCC requirements apply to the facility and
how to certify the SPCC Plan.
    Other commenters requested that EPA consider excluding from both
qualified facility thresholds--that is, Tier I and Tier II, the
capacity of those containers containing AFVOs that would solidify
without heating. The Agency disagrees because, similar to AC and other