secondary containment or to comply with EPA’s additional proposed
requirements if secondary containment is not implemented. The commenter
asserted that if secondary containment is implemented, then no
additional measures should be required. (85)  Two commenters suggested
EPA clarify whether secondary containment is an alternative to the
proposed option. (111, 150)

RESPONSE

Generally support. The Agency agrees with the commenters who expressed
support for EPA’s alternative option for flow-through process vessels
in lieu of sized secondary containment. EPA is finalizing rule
provisions to meet this end. EPA is taking this action because the
Agency agrees with concerns regarding the requirement to provide sized
secondary containment around flow-through process vessels, such as
heater-treaters, due to a potential fire hazard if spilled oil collects
around such equipment. EPA also recognizes that similar flow-through
process equipment (i.e., oil-filled manufacturing equipment, such as
reaction vessels, fermentors, high pressure vessels, mixing tanks,
dryers, heat exchangers, and distillation columns) at non-production
facilities are not subject to the more stringent sized secondary
containment and integrity/inspection requirements required for bulk
storage containers; only the general secondary containment requirements
at §112.7(c) apply. However, EPA recognizes that process equipment at
non-production facilities, such as at manufacturing facilities, is
typically attended during hours of operation and there is a greater
potential to immediately discover and correct a discharge at
non-production facilities than at oil production facilities, which are
generally unattended. Therefore, EPA is requiring additional measures
for flow-through process vessels at oil production facilities that do
not have sized secondary containment, including inspection or testing of
components, prompt removal or initiation of actions to stabilize and
remediate any oil accumulations, and corrective action.

Generally oppose.  EPA disagrees with commenters, because this action
does not eliminate requirements for this equipment, but rather provides
a compliance option that reduces containment requirements while
increasing other spill prevention requirements. This trade-off should
offer an alternative that provides equivalent environmental protection
to the existing containment requirements.

Effects of discharge. EPA agrees with the commenter who expressed
concern regarding the effects of a discharge from flow-through process
vessels, but the Agency believes that this alternative approach, which
requires general secondary containment in accordance with §112.7(c) and
the additional requirements to inspect, repair equipment, and address
oil accumulations that may occur following a discharge from flow-through
process vessels, addresses this concern. EPA also believes the
alternative requirements for flow-through process vessels address the
concern that these facilities are constantly operating and have constant
flow of fluids through this equipment because the owner or operator must
inspect the equipment and take corrective action to address a discharge
following procedures described in the SPCC Plan.

Additional measures are excessive or unnecessary. The Agency also
disagrees with those commenters who characterized the amended
requirements as excessive, and the requests for EPA to reconsider the
necessity of additional measures in lieu of sized secondary containment.
The amendments allow an owner or operator to provide general secondary
containment for flow-through process vessels and requires new prevention
measures as an alternative to the rule’s existing sized secondary
containment requirement. The alternative measures are optional—that
is, the owner or operator may still choose to comply with the sized
secondary containment requirement. The facility owner or operator
decides which option is best suited to the design and operation of the
facility. The Agency believes that the alternative approach finalized in
this rule for flow-through process vessels allows the owner or operator
of an oil production facility flexibility in how to design secondary
containment for this equipment and in how to comply with the additional
requirements that maintain environmental protection. As part of this
action, EPA considered whether existing state regulatory programs could
satisfy the amended requirements. Although a number of states do have
requirements for oil production facilities to prevent spills, they do
not provide a comprehensive, national approach that would be equivalent
to the SPCC requirements, as these programs have been developed to meet
states’ individual goals. Therefore, EPA believes that relying solely
on state programs would not provide nationwide consistent requirements
for spill prevention. However, the Agency recognizes the benefits of
allowing the owner or operator of a regulated facility to take credit
for compliance with state program requirements when these serve to meet
certain SPCC requirements and can be referenced in accordance with 40
CFR part 112.

Inconsistent with statute. The Agency disagrees with the commenter who
argued that the revised option for flow-through process vessels at
production facilities is inconsistent with the intent of 33 U.S.C.
1321(j)(5)(D). The Agency’s authority to promulgate the SPCC
regulations is found in Section 311(j)(1)(C) of the Clean Water Act, 33
U.S.C. 1321(j)(1)(C). Section 311(j)(1)(C) requires the President to
issue regulations establishing procedures, methods, equipment, and other
requirements to prevent discharges of oil to navigable waters and
adjoining shorelines from vessels and facilities and to contain such
discharges. The statutory provision gives the Agency broad discretion to
establish the requirements under the SPCC rule. The purpose of the SPCC
program is to prevent and control oil discharges from reaching navigable
waters or adjoining shorelines. Also, Section 311(j)(5)(D), 33 U.S.C.
1321(j)(5)(D), lists the requirements for Facility Response Plans (FRP).
The Agency has promulgated regulations for FRPs in 40 CFR 112.20-21 and
this action does not impact the requirement for an owner or operator to
prepare and implement an FRP when the facility meets the substantial
harm criteria in §112.20(f). Therefore, this amendment does not
conflict with the requirements under 33 USC 1321(j)(5)(D).

Secondary containment as alternative. EPA agrees with commenters that
facility owners or operators who have provided sized  secondary
containment in accordance with §112.9(c)(2) for flow-through process
vessels should not be required to comply with the additional
requirements for these vessels. Therefore, EPA is amending the rule to
indicate that flow-through process vessels currently equipped with sized
secondary containment in accordance with §112.9(c)(2) and (c)(3) are
not required to comply with the alternate requirements under
§112.9(c)(5). In response to the commenter who asked about the size of
containment required, EPA notes that in determining how to provide
appropriate general secondary containment for flow-through process
vessels, a production facility owner/operator may consider the typical
failure mode and most likely quantity of oil that would be discharged
(see §112.7(c)). Based on these site-specific conditions, the owner or
operator can determine what capacity of secondary containment is needed,
and design the containment method accordingly. The design for general
secondary containment should address site-specific factors, including,
but not limited to, frequency of site visits, rate of flow of the wells,
flow rate of liquids through the separation process, capacity of the
containers, and whether the facility is equipped with automatic shut-off
devices to prevent an overflow. However, as indicated elsewhere in this
action, general secondary containment is based on the most likely
discharge, not the worst case discharge.

XII.E.ii	Additional Requirements

Issue: Because oil production facilities are typically unattended during
the hours of operation, EPA proposed to add provisions at
§112.9(c)(5)(i) through (iii) to provide additional requirements for
flow-through process vessels. These additional requirements would
include periodic inspection and/or testing, corrective action, and
prompt removal of any oil accumulations.

COMMENTS

Inspections

Remove periodic inspection language. A commenter stated that the lease
operator visits the flow-through area daily and therefore, the
flow-through vessels are inspected while the lease operator takes
readings and switches wells to test. The commenter added that in the
Rocky Mountain region, heavy snow prevents the lease operator from
visiting the well during winter so many Rocky Mountain region operators
provide weekly fly-overs to check on the wells. The commenter stated
that if a problem is observed, weather permitting; a crew will attempt
to visit the well or tank battery. The commenter stated that mandating
routine inspections of facilities during hurricanes would not be prudent
since hurricanes produce dangerous conditions offshore for persons in
small boats. The commenter recommended that EPA not mandate routine
inspection of flow-through vessels, since oil and gas operators
routinely visit tank batteries and wells and the lease operator would
observe leaks from the vessels. (31)

Inspection documentation. One commenter suggested that EPA should
clarify that visual inspections required by a standard or regulatory
requirement be documented based on the PE’s engineering judgment, in
order to avoid maintaining inspection documentation on each periodic
inspection. (75)

Prompt Removal of Oil Discharges

Removal of accumulations. A commenter suggested that the use of the word
‘promptly’ is too vague and does not properly acknowledge other
potential methods of immobilizing hydrocarbons in soil matrices such as
physical, chemical, and/or biological treatment methods. Instead, the
commenter suggested that the language should refer to the effort
required to contain and stabilize any accumulations of oil discharges to
prevent a discharge as described in 40 CFR 112.1(b). (111)

RESPONSE

Remove periodic inspection language. EPA disagrees with the commenter
who requested EPA remove the inspection requirement for flow thru
process vessels. The requirement of periodic inspection and/or testing
of flow-through process vessels and associated appurtenances on a
regular schedule for leaks, corrosion, or other conditions that could
lead to a discharge as described in §112.1(b) is intended to increase
the likelihood that a discharge will be prevented or detected promptly.
This is especially true for components that typically cause discharges,
such as dump valves. These requirements are consistent with the
inspection requirements for bulk storage containers under §112.9(c)(3).
EPA recognizes that because oil production facilities are typically
unattended, remote, and have a constant flow of oil and well fluids,
sized secondary containment measures provide environmental protection
for any potential discharge. EPA does not intend inspections to create a
public safety concern for personnel conducting inspections and expect
that the SPCC Plan will include provisions to address weather related
concerns that may impact the inspection schedule. Because EPA is
revising the rule such that flow-through process vessels are subject to
the general secondary containment requirement (§112.7(c)) instead of
the sized secondary containment requirement, the Agency seeks to ensure
that any leak, or potential for a leak, is detected promptly enough to
prevent a discharge of the entire contents of the separation or treating
equipment. Therefore, EPA believes it is important to require that
inspections be completed and documented in accordance with the
requirements in §112.7(e).

Inspection documentation. EPA did not propose to modify the
recordkeeping requirement of the rule under §112.7(e). The SPCC rule
requires that the owner or operator must keep written procedures and a
record of inspections (including those that are visual) which must
signed by the appropriate supervisor or inspector, and maintained for a
period of three years (records of inspections and tests kept under usual
and customary business practices will suffice). Changes to this
provision would be outside the scope of this rulemaking.

Removal of oil accumulations.  EPA is amending the requirement under
§112.9(c)(5)(iii) with some modifications to the proposed language, in
response to comments regarding removal of oil accumulations.
Specifically, commenters suggested adding language that would
acknowledge that other methods of immobilizing hydrocarbons in solid
matrices, such as physical, chemical and/or biological treatment methods
should be allowed. EPA agrees that other methods may be used to
stabilize and remediate and thus, the Agency is adding language that
would acknowledge other methods of immobilizing hydrocarbons in soil
matrices such as physical, chemical and/or biological treatment methods.
EPA added the phrase, “remove or initiate actions to stabilize and
remediate” to address this concern. EPA considers the removal of
oil-contaminated soil as a method to prevent oil from becoming a
discharge as described in §112.1(b). Disposal of oil must be in
accordance with applicable Federal, state, and local requirements; under
§112.7(a)(3)(v), a facility owner or operator is required to describe
the methods of disposal of recovered materials in accordance with
applicable legal requirements. For the purposes of this provision,
removal of recoverable oil may be combined with physical, chemical,
and/or biological treatment methods to address any residual oil. These
treatment methods must be consistent with other Federal, state or local
requirements as applicable, and must be properly managed to prevent a
discharge as described in §112.1(b). However, the Agency disagrees with
the comment that suggested replacing “Promptly remove” with “Upon
discovery.” “Promptly remove” indicates that the owner or operator
of a facility has both the responsibility and flexibility to outline an
inspection program under §112.9(c)(5)(i) which puts the timeframe for
“prompt removal” in the context of the inspection frequency.

XII.E.iii Reportable Discharge

Issue: EPA proposed a provision at §112.9(c)(5)(iv) stating that if an
oil production facility has discharged more than 1,000 U.S. gallons of
oil in a single discharge as described in §112.1(b), or discharged more
than 42 U.S. gallons of oil in each of two discharges as described in
§112.1(b), occurring within any twelve month period, from a
flow-through process vessel, then the facility owner or operator must
provide sized secondary containment for all flow-through process vessels
at the facility within six months from the discovery of the spill(s).

COMMENTS

Oppose Provision

Regional Administrator report.  Two commenters expressed concern with
the reportable discharge criterion because §112.4 already requires a
facility with a discharge as described in this provision to submit a
report to the Regional Administrator within 60 days. The commenters
noted the Regional Administrator may require sized secondary
containment, but there is also an appeal procedure if the facility
owner/operator disagrees with the amendment. (75, 111)

RESPONSE

Regional Administrator report. While the Agency acknowledges that EPA
continues to require a facility that has had a discharge as described in
§112.1(b) to submit a report to the Regional Administrator within 60
days, EPA believes that the owner or operator of a facility that has had
such a discharge, as described in this criterion, should be required to
comply with the sized secondary containment requirement because it would
appear that the facility was not able to prevent discharges to navigable
waters or adjoining shorelines by complying with the alternative
standard—that is, general secondary containment with additional
measures. If a facility owner or operator is unable to successfully
prevent oil discharges using general containment requirements and
additional measures, EPA believes that requiring sized secondary
containment provides a fail-safe method to address the risk of
discharges. The Agency’s preferred method for preventing discharges
from flow-through process vessels at these constantly-flowing,
unattended facilities is the use of sized secondary containment. Sized
secondary containment provides a buffer to allow for containment of
fluids from these vessels until a discharge is discovered. Thus, the
owner or operator would be required to automatically amend the SPCC Plan
and provide sized secondary containment for all flow-through process
vessels at the production facility within six months of the discharge.
This containment must be sized to contain the contents of the single
largest container, with sufficient freeboard for precipitation.
Additionally, the owner or operator must submit a report to the EPA
Regional Administrator as required under §112.4(a).

The discharge criterion is well established in the SPCC rule. This
discharge criterion is similar to the provision in §112.4(a) for
discharges that must be reported to the EPA Regional Administrator.
Under §112.4, a facility owner or operator must report certain
information to the Regional Administrator whenever the facility
experiences a discharge reportable under §112.4. The Agency has used
this criterion for eligibility for alternative measures in the past,
such as to allow the owner or operator of a qualified facility to
self-certify the SPCC Plan and to allow the use of contingency planning
and other measures in lieu of secondary containment for qualified
oil-filled operational equipment (see 71 FR 77266, December 26, 2006).
The Agency believes that finalizing this criterion to trigger the
requirement to redesign secondary containment is consistent with other
spill history criteria used elsewhere in the SPCC rule.

XII.F	Small Oil Production Facilities as Qualified Facilities

XII.F.i	 Alternative Qualified Facility Eligibility Criteria for Oil
Production Facilities

Issue: EPA requested comment on an approach that identified specific
criteria for an oil production facility that produces oil from a limited
number of stripper wells to be considered a qualified facility,
notwithstanding the tank storage capacity at the facility. The approach
was shaped by the specific characteristics of production facilities and,
as such, could result in the application of SPCC requirements in a
manner better suited to these facilities.

COMMENT

Support

Generally support.  Two commenters expressed support for an approach
that would identify specific criteria for small oil production
facilities to be considered qualified facilities. (76, 105)

Oppose

“Qualified Facilities” should apply only to small facilities. One
commenter was opposed to any alternative eligibility criteria for
production facilities because the idea behind Qualified Facilities is to
provide an alternative for the truly small operator to not be burdened
with high PE costs for certifying their SPCC Plan. The commenter stated
that the docket (EPA-HQ-OPA-2007-0584-0015) shows that most oil
production facilities are not small, they have more than 10,000 gallons
of oil storage and make up 61% of the facilities with 10,000-42,000
gallons oil storage capacity. The commenter continued that tanks at oil
production facilities range from 300 barrels (12,600 gallons) to 1,000
barrels (42,000 gallons) with some even larger. The commenter concluded
that a spill from any of these tanks would be considered a major spill
(10,000 gallons) under the National Contingency Plan. The commenter also
argued that production facilities are not simple facilities, but have
lots of complex operations, including wells, separators, heater
treaters, pumps, tanks and injection wells. (140)

Relief should be expanded. One commenter stated that regulatory relief
for small oil production facilities as proposed by EPA is from our
perspective overly constrained and alternatives to expand such relief
should be considered in the development of the final rule. (96) One
commenter expressed concern that the use of “four wells” as part of
the definition of marginal production is not well-established and would
restrict the applicability of this option. (76)

No injection wells. Several commenters expressed concern with the
condition that there be no injection wells as part of the criteria for
marginal production (76, 105, 123) noting that “no injection wells”
is not part of an established definition (76); this action would
eliminate small facilities that utilize injection for secondary or
tertiary recovery (105); and that the produced water that would flow
from the container to the injection wellhead has already been through
oil-water separation and treatment and should contain little oil. (123)

Other Suggested Eligibility Criteria

Reduce rate and well number.  One commenter stated that if EPA provides
any lesser requirements for stripper facilities, such as allowing them
to be considered qualified facilities, then the definition adopted
should only apply to very small producing operations (less than 5
barrels per day per well) with very simple operations consisting of no
more than 3 wells flowing to one tank battery and no injection wells.
(140)

Alternative tier thresholds.  Several commenters suggested alternative
thresholds for production facilities. The commenter suggested
alternative definitions for Tiers I, II and III, which would exempt all
stripper well facilities, require inspections and training in accordance
with the 2002 SPCC rule for non-stripper facilities with less than 1,200
barrels of oil storage capacity, and an SPCC Plan for non-stripper well
facilities with more than 1,200 barrels of oil storage capacity. (31)
Commenters suggested alternative thresholds of 15,000 gallons for
applicability, with no storage container greater than 8,820 in capacity
(76), or a maximum container capacity of 5,000 gallons (105).

RESPONSE

Generally Support.  EPA agrees in principle with the commenters who
supported alternative qualified facility eligibility criteria for oil
production facilities and is finalizing the option described in the
proposal with some modifications.  EPA has finalized two additional
“qualified” facility criteria specifically tailored to the unique
characteristics of production facilities. A qualified oil production
facility is one that meets all of these conditions: (1) no more than two
producing wells per single tank battery if the facility has an injection
well; or no more than four producing wells per single tank battery with
no injection wells at the facility; (2) each well  produces no more than
ten barrels of crude oil per day; and (3) the facility has not had a
single discharge as described in §112.1(b) exceeding 1,000 U.S. gallons
or two discharges as described in §112.1(b) each exceeding 42 U.S.
gallons within any twelve month period in the three years prior to Plan
certification, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than three years. Facilities
with no more than two producing wells are eligible to be a qualified
facility regardless of whether they have injection wells. Discharges as
described in §112.1(b) that are the result of natural disasters, acts
of war, or terrorism do not disqualify a facility owner or operator from
the alternative option described above.

Based on the comments received, and the Agency’s evaluation of this
industry sector, EPA is finalizing in this rule an amendment that
provides alternative criteria for identifying qualified facilities in
the oil production sector for onshore facilities. EPA believes that
alternative eligibility criteria for identifying a qualified facility
for certain onshore oil production facilities is appropriate because,
notwithstanding their simple configurations, many of these small oil
production facilities cannot meet the 10,000 gallon aggregate
aboveground oil storage capacity threshold for Tier I and II qualified
facility designation. Given (1) the large number of marginal or stripper
wells in the U.S.; (2) that they contribute a significant portion of the
country’s oil production; and (3) EPA’s understanding of the
particular aboveground oil storage container capacities and the nature
of the fluids handled at certain small oil production facilities, other
criteria beyond oil storage container capacity are more appropriate in
determining whether an owner or operator of such a facility should
self-certify his SPCC Plan. These other criteria, unique to small oil
production facilities, serve to identify a qualified facility consistent
with the intent of this approach as promulgated on December 26, 2006 (71
FR 77266), by identifying the simplest operations by factors other than
strictly capacity.

The following table illustrates the tiers, criteria, and options for
production facilities meeting the qualified facilities eligibility
criteria and all other production facilities, as described in this
notice:

Production facilities that are qualified facilities	All other production
facilities

Tier I	Tier II

	Oil production facility and:

(1) No more than two producing wells per single tank battery / ten
barrels or less of crude oil per well per day / if the facility has an
injection well; or

(2) No more than four producing wells per single tank battery / ten
barrels or less of crude oil per well per day / no injection wells; or

(3) The facility has10,000 U.S. gallons or less aggregate aboveground
oil storage capacity; and

	Oil production facility with an aggregate aboveground oil storage
capacity greater than 10,000 gallons and:

	(1) More than two producing wells per single tank battery with one or
more injection wells;

(2) More than four producing wells per single tank battery; or

(3) More than ten barrels of crude oil produced per well per day; or

Within any twelve-month period, three years prior to the Plan
certification date, or since becoming subject to the SPCC rule if in
operation for less than three years, there has been:

(1) No single discharge of oil to navigable waters or adjoining
shorelines exceeding 1,000 U.S. gallons; and

(2) No two discharges of oil to navigable waters or adjoining shorelines
each exceeding 42 U.S. gallons *; and

	Within any twelve-month period, three years prior to the Plan
certification date, or since becoming subject to the SPCC rule if in
operation for less than three years, 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 oil containers greater than 5,000 U.S.
gallons;

	Has individual aboveground oil containers greater than 5,000 U.S.
gallons; or

Owner or operator eligible for Tier I qualified facility status, but
decides not to take the option or chooses to develop a “hybrid”
Plan;	Owner or operator eligible for qualified facility status, but
decides not to take the option;

Then: Complete and self-certify Plan template (Appendix G to 40 CFR part
112) in lieu of a full PE-certified Plan.	Then: Prepare a self-certified
Plan in accordance with all applicable requirements of §112.7 and
subparts B and C of the rule, in lieu of a PE-certified Plan.	Then:
Prepare a PE-certified Plan in accordance with all applicable
requirements of §112.7 and subparts B and C.

* This criterion does not include discharges as described in §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.

EPA clarified that a natural gas production facility storing condensate
(petroleum oil), in quantities that meet the SPCC applicability
criteria, is considered an oil production facility. Since such an
onshore natural gas production facility, as described above, is
considered an onshore oil production facility, it may be eligible for
the qualified facility relief for marginal wells if it meets the other
new criteria finalized today in §112.3(g)(2)(ii). Additionally, since a
natural gas production facility can often store smaller quantities of
oil, the facility may already meet the existing “capacity based”
qualified facility criteria in §112.3(g)(2)(i), available to all
facility types.

Finally, DOE did provide supplemental information to EPA after the
formal comment period has closed regarding this issue.  EPA reviewed and
evaluated this supplemental data during the Agency action development
process.  EPA drafted a paper evaluating the DOE data.  Both the DOE and
EPA document have been docketed.

Oppose

“Qualified Facilities” should apply only to small facilities. The
Agency does not agree that PE certification should be required for all
facilities with more than 1,320 U.S. gallons oil storage capacity, given
that the Agency has already promulgated an approach allowing owners and
operators of facilities that meet certain criteria, including a total
aboveground oil storage capacity of 10,000 U.S. gallons or less to
self-certify Plans. A number of commenters pointed out that oil
production facilities are already subject to a differentiated set of
requirements under the SPCC rule. While the Agency recognizes this, it
continues to believe that a differentiated alternative for facilities
with simple configurations has merit, and that providing the added
flexibility of self-certification for the smaller oil handlers/simpler
operations, along with the other streamlined requirements tailored to
the unique features of this sector should improve overall spill
prevention and environmental protection. EPA believes that alternative
eligibility criteria for identifying a qualified facility for certain
onshore oil production facilities is appropriate because,
notwithstanding their simple configurations, many of these small oil
production facilities cannot meet the 10,000 gallon aggregate
aboveground oil storage capacity threshold for Tier I and II qualified
facility designation. These other criteria, unique to small oil
production facilities, serve to identify a qualified facility consistent
with the intent of this approach as promulgated on December 26, 2006 (71
FR 77266), by identifying the simplest operations by factors other than
strictly capacity.

Relief should be expanded. Because the configuration of an oil
production facility is variable, complexity depends upon a number of
factors, including, but not limited to: the oil field, production rate,
type of fluid, operating equipment and conditions, and viscosity of the
oil. Because oil production facilities do not have a “typical”
configuration and based on comments received, the Agency has finalized
two sets of eligibility criteria tailored to the unique features of
production facilities intended to minimize the complexity of the
operations where self-certification seems appropriate. A qualified oil
production facility is one that meets all of these conditions: (1) no
more than two producing wells per single tank battery if the facility
has an injection well; or no more than four producing wells per single
tank battery with no injection wells at the facility; (2) each well
produces no more than ten barrels of crude oil per day; and (3) the
facility has not had a single discharge as described in §112.1(b)
exceeding 1,000 U.S. gallons or two discharges as described in
§112.1(b) each exceeding 42 U.S. gallons within any twelve month period
in the three years prior to Plan certification, or since becoming
subject to 40 CFR part 112 if the facility has been in operation for
less than three years. Facilities with no more than two producing wells
are eligible to be a qualified facility regardless of whether they have
injection wells. Discharges as described in §112.1(b) that are the
result of natural disasters, acts of war, or terrorism do not disqualify
a facility owner or operator from the alternative option described
above.

No injection wells. EPA agrees with commenters that the relief provided
to small oil production facilities in this action should not be
restricted to facilities without injection wells. Facilities with no
more than 2 producing wells per single tank battery and one injection
well, which also satisfy all of the remaining criteria, are eligible for
qualified facility status. Additionally, facilities with no more than
two producing wells are eligible to be a qualified facility regardless
of whether they have injection wells. By limiting the number of
producing wells per single tank battery to two producing wells at
facilities that have injection, EPA believes that because of the smaller
oil storage capacities and the greater likelihood that those wells are
located near the tank battery, a marginal well oil production facility
with two producing wells is consistent with other qualified facilities.

Other Suggested Eligibility Criteria

Reduce rate and well number. EPA disagrees with the commenter. However
by setting the maximum number of wells at four producing wells if there
are no injection wells at the facility, or two producing wells if there
are injection wells at the facility, there is a greater likelihood that
those wells are located near the tank battery. EPA believes that the
four-well criterion targets those oil production facilities with less
complex operations and configurations, consistent with other qualified
facilities. Similarly, the criterion that excludes underground injection
for a facility with four producing wells eliminates the complexity
associated with injection related equipment. By limiting the number of
producing wells per single tank battery to two producing wells at
facilities that have injection, EPA believes that because of the smaller
oil storage capacities and the greater likelihood that those wells are
located near the tank battery, a marginal well oil production facility
with two producing wells is consistent with other qualified facilities.
In addition, the reduced complexity in decreasing from four to two
producing wells is similar to the change in complexity associated with
injection wells. EPA believes a PE need not be involved in the SPCC Plan
at facilities with a limited number of wells and associated equipment
and piping.

Alternative Tier Thresholds. EPA considered many of the different
threshold proposals but disagrees that the threshold should be based
solely on increasing the total storage. Instead EPA has chosen an
approach that identifies simple production operations by their unique
characteristics identified by commenters. Because the source of the oil
for production facilities is through extraction wells, the number of
wells better identifies the complexity of a production operation. Some
of these facilities are unique as they reinject fluids in the reservoir
for disposal purposes or for enhanced oil recovery. The presence of
these injection and production wells is a characteristic unique to oil
production facilities that can help to determine the complexity of the
operation. These characteristics, unique to the oil production sector,
provided the Agency with the basis for a tailored set of criteria to
identify oil production facilities with simple configurations.
Developing a criterion based solely on raising the oil storage capacity
criterion would be inconsistent with the rationale established for the
original 10,000-gallon criterion and would not necessarily maintain
environmental protection. Thus, while EPA does not agree that raising
the oil storage capacity threshold is appropriate, the Agency does agree
with commenters that the unique characteristics of an oil production
facility allow EPA to establish alternative criteria for a Tier II
qualified facility, and EPA has finalized provisions to that effect.

XII.F.ii	 Alternative Approaches for Addressing Small Oil Production
Facilities as Suggested by the Department of Energy

Issue: The Department of Energy (DOE) requested that the EPA seek input
on several approaches that DOE believes may be more suited to address
the concerns of small oil production facilities including different
eligibility criteria for these facilities such as different aggregate
oil storage capacity thresholds or a stripper well definition for
identifying qualified facilities.  DOE also suggested the exemption of
existing stripper oil and natural gas wells from SPCC requirements and
the adoption of other regulatory programs to address the objectives of
the SPCC rules. Finally, DOE provided supplemental information to EPA
after the formal comment period has closed regarding this issue.  EPA
reviewed and evaluated this supplemental data during the Agency action
development process.  EPA drafted a paper evaluating the DOE data
(Summary of Supplemental DOE Comments and EPA Response, documents
prepared by Abt Associates Inc). Both the DOE and EPA documents have
been docketed.

COMMENTS

Aggregate Oil Storage Capacity Threshold

Increase the threshold.  Two commenters expressed concern that the
current threshold requirements are too low to provide significant
benefit for marginal oil production facilities.  One commenter suggested
50,000 gallons where no single container is greater than 21,000 gallons.
(85)  One commenter suggested removing consideration of this approach
unless produced water storage is eliminated from the threshold
calculation. (123)

Stripper Well Definition

Use IRS definition. Two commenters suggested using the Internal Revenue
Service tax code definition for marginal production to ease compliance.
(31, 86) The commenter argues that the EPA definition remains linked to
storage capacity at the facility, while the storage capacity at marginal
wells is not sized based on current production levels. The commenter
added that these facilities are designed when the wells are producing at
higher rates and a production declines and the wells become marginal,
the same equipment is used because it remains functional and it is too
expensive to replace as the well generates lower income. (86)

Exemption of Stripper Oil and Natural Gas Wells from All SPCC
Requirements

Generally support.  Three commenters expressed support for exempting
existing stripper oil and natural gas wells from all SPCC requirements.
(43, 105, 158)

Regulate only crude oil and condensate containers. One commenter
suggested regulating only crude oil and condensate containers, given
that the releases reported to the National Response Center are low and
EPA has never conducted a comprehensive environmental analysis of the
risks associated with these proposed regulations and whether they
significantly change from the current regulatory program to this
proposed one. (86)

Other Regulatory Programs Address the Objectives of the SPCC Rule

State and other Federal programs.  One commenter suggested that state
spill prevention regulatory programs should serve small production
facilities rather than one federal program. (76)  Two commenters
suggested that EPA consider other regulatory requirements, including DOT
Carrier Requirements for Spills, Spill Reporting, Transportation
Security Planning (82), and EPA Stormwater Discharge Permitting (82,
142). One commenter suggested allowing all SPCC facilities to have the
option of using other equivalent prevention plans to meet SPCC planning
requirements (142).

One commenter noted that states in general simply do not address
equivalent requirements of the SPCC regulations and especially not to
the extent of the SPCC regulations with respect to prevention of oil
discharges, arguing that removing SPCC requirements would leave the
environment and waters of the United States exposed to increased
pollution. (140)

RESPONSE

Aggregate Oil Storage Capacity Threshold

Increase the threshold.  The Agency disagrees with commenters who
suggest establishing a new capacity-based Tier II criterion for oil
production facilities greater than the already established 10,000-gallon
threshold for all facilities.  While the Agency received a number of
comments regarding a wide variety of thresholds for defining a Tier II
qualified facility in the oil production sector, the comments did not
provide sufficient data to support the threshold numbers other than it
would increase the number of facilities that would be eligible as a
qualified facility and thus, self-certify their SPCC Plan. More
importantly, the commenters did not demonstrate how these new thresholds
would maintain environmental protection. EPA does not agree with the
commenters to base a new Tier II qualified facility threshold for oil
production operations solely on an increased capacity threshold, as
there was no justification for providing oil production facilities with
a higher threshold than non-production facilities or for how the higher
threshold relates to simplicity in facility configuration or operations.

Stripper Well Definition

Use IRS definition.  EPA agrees with commenters that the oil production
sector has unique characteristics and that other criteria may better
serve in defining a Tier II qualified facility. For example, the fact
that oil production facilities have flow-through process vessels
suggests that flow rate (in the form of an oil production rate) may be a
better approach for setting a new criterion for identifying the simplest
oil production facility operations. Additionally, the facility flow
rates are associated with the production and inject rate unique to this
sector EPA disagrees with commenters who argued that the IRS tax code
definition of 15 barrels or less of oil per day equivalence should be
used in defining flow rate. Specifically, the IRS definition of 15
barrels of oil or less per day equivalent is calculated by dividing the
average daily production of domestic crude oil and domestic natural gas
from producing wells on such property for such calendar year by the
number of such wells. Thus, under this approach, a facility will contain
wells with marginal production, such as 15 barrels of oil per day, but
also will likely contain wells that produce much greater quantities of
oil, because the IRS definition calculates the average daily production
of oil over all producing wells, as opposed to the amount of oil that
flows from any individual well. EPA believes that using such a
definition defeats the purpose of identifying a qualified facility,
which is to allow those small facilities that have relatively simple
operations to self-certify their SPCC Plans. Thus, the Agency has
adopted a per well approach that places a flow rate cap of ten barrels
or less of oil produced per well per day, as this is consistent with the
definition of “stripper well” codified at 40 CFR 435.60.

Exemption of Stripper Oil and Natural Gas Wells from All SPCC
Requirements

Generally support. EPA disagrees with commenters who supported a overall
exemption for stripper oil and natural gas wells. While the majority of
comments the Agency received supported an outright exemption for
stripper oil and natural gas wells from the SPCC requirements, the
commenters did not provide sufficient data to justify an exemption or
demonstrate how an exemption would maintain environmental protection.
EPA believes the compliance alternative provided in today’s action
balances the concerns of the commenters while maintaining environmental
protection. EPA also disagrees with the commenters that the SPCC
requirements and compliance costs alone would cause small oil production
facilities to shut down, reducing U.S. oil production (see memorandum
dated April 11, 2008, Preliminary Assessment of SPCC Compliance Costs
and Energy Impacts on Oil Exploration and Production). As EPA has noted
elsewhere, these facilities, which are generally unattended, can store
large quantities of oil and oil/water mixtures in a variety of
containers that may have large capacities. These factors, as well as
others, highlight the hazard potential posed by these operations (see
Considerations for the Regulation of Onshore Oil Exploration and
Production Facilities Under the Spill Prevention, Control, and
Countermeasures Regulation, May 30, 2007, in the docket for this
rulemaking (  HYPERLINK
"http://www.regulations.gov/fdmspublic/component/fdmsSearchResult/fdms_d
ocket_detail?d=EPA-HQ-OPA-2007-0584&docType=fdms_docket&returnUrl=http%3
A%2F%2Fwww.regulations.gov%2Fsearch%2F&Reload=1215718427291&__dmfFrameId
=FdmsPubMain_content_0" \o "EPA-HQ-OPA-2007-0584-0015"
EPA-HQ-OPA-2007-0584-0015 )). Thus, based on this hazard, the Agency
believes it inappropriate to grant an outright exemption for such
stripper oil and natural gas wells from the SPCC requirements. However,
EPA does agree that performance-based requirements tailored to the
unique characteristics of marginal oil production facilities are
justified, as EPA has described previously.

Regulate only crude oil and condensate containers.  EPA disagrees with
commenters who suggested that EPA should only regulate crude oil and
condensate containers. Production operations typically have other
equipment and containers that store, process or transfer oil, which if
discharged, can cause harm, as described in 40 CFR part 110. The hazard
posed by these operations are also described in Considerations for the
Regulation of Onshore Oil Exploration and Production Facilities Under
the Spill Prevention, Control, and Countermeasures Regulation, May 30,
2007, in the docket for this rulemaking (  HYPERLINK
"http://www.regulations.gov/fdmspublic/component/fdmsSearchResult/fdms_d
ocket_detail?d=EPA-HQ-OPA-2007-0584&docType=fdms_docket&returnUrl=http%3
A%2F%2Fwww.regulations.gov%2Fsearch%2F&Reload=1215718427291&__dmfFrameId
=FdmsPubMain_content_0" \o "EPA-HQ-OPA-2007-0584-0015"
EPA-HQ-OPA-2007-0584-0015 ). However, EPA does agree that
performance-based requirements tailored to the unique characteristics of
marginal oil production facilities are justified, as EPA has described
previously, which the Agency believes will lead to the prevention of oil
spills.

Other Regulatory Programs Address the Objectives of the SPCC Rule

State and other Federal programs. EPA disagrees with commenters who
suggested that the SPCC regulations are not needed because of other
regulatory programs, such as state programs, or the NPDES or UIC
programs. EPA conducted a comparison of a number of these programs with
the SPCC program and found that they were not nationally uniform (see
Review of State Regulations Pertaining to Oil Spill Prevention at
Onshore Production Facilities and Produced Water Containers and the
Summary of Supplemental DOE Comments and EPA Response, documents
prepared by Abt Associates Inc., and found in the docket for today’s
rulemaking). Further, under the Oil Pollution Act and CWA, EPA is
required to promulgate oil spill prevention regulations, and it cannot
delegate its responsibilities to other federal or state programs, but
has streamlined SPCC requirements or provided targeted exemptions from
SPCC regulation when such regulations provide comparable or equivalent
environmental protection. However, EPA has stated previously that, if a
facility owner or operator must comply with a state or Federal
requirement that also satisfies an SPCC requirement, the owner or
operator can include and reflect such effort in his SPCC Plan and not
duplicate it solely for SPCC. EPA wants to minimize duplicative
requirements where possible and is working to tailor requirements, where
appropriate.

XII.G	Produced Water Containers

XII.G.i	General

Issue: EPA considered whether there are regulatory options for produced
water containers that can protect the environment at lesser cost than
the current rule requirements along with the amendments proposed in this
action.

COMMENT

Oil in produced water.  One commenter noted that produced water
containers are located within the secondary containment, and produced
water containers “always have an oil layer floating on top of the
water”. (31) Commenters noted that EPA has authority to regulate
discharges of oil, not water, and after separation, produced water
contains only minimal amounts of oil. (76, 85, 94, 103, 105, 133) One
commenter stated that from a practical viewpoint, a 1,319 gallon oil
tank would not be subject to SPCC regulation but a 1,321 gallon produced
water tank that may have a skim of oil present on top of the water,
would be subject to SPCC regulation. (133) Several commenters noted the
economic value of recovering oil ensures minimal concentrations of oil
in produced water. (85, 108)

Spill data and potential for discharge.  One commenter expressed concern
that the spill data available shows that most spills are from facilities
EPA to which is proposing to provide relief. (32) Two commenters noted
that a release from the average size produced water container can
discharge 16,800 to 42,000 gallons. A commenter added that there are
produced water containers with 1,000,000 gallons or more capacity and
that a discharge from these produced water containers would be
devastating to the environment and waters. (140)

Produced water is harmful.  One commenter was concerned that produced
water is harmful and contaminates surface waterways, groundwater and
drinking water; kills fish, birds, and wildlife; causes severe health
effects in humans and impacts wildlife habitats.  The commenter stated
that it only takes a small amount of oil to impact a large area; for
instance, 0.3 mm of oil can cover more than 3 acres. The commenter added
that it does not make a difference how thick the layer of oil is, it can
suffocate fish and birds can land in it and be coated with oil.  (140)
One commenter expressed concern that produced water pits had caused the
death of wildlife on their property, noting the hazard to the
environment. (36)

Substantial harm.  One commenter suggested that produced water storage
should not be subjected to the same requirements for FRPs as are oil
storage containers. (94)

Supplemental proposal.  One commenter suggested EPA prepare a
supplemental proposal for any action on produced water containers as the
public has not had an opportunity to comment on proposed rule language
for this issue. (145)

RESPONSE

Oil in produced water. After evaluating the comments received, EPA is
modifying the requirements at §112.9(c) to exempt produced water
containers that meet certain conditions and to allow an alternative
management scheme (which is optional) for produced water containers that
are used for oil/water separation in lieu of sized secondary
containment. EPA is exempting produced water containers at oil
production facilities from the requirements of the SPCC rule when a PE
certifies, as part of the SPCC Plan, that based on the efficiency of the
oil/water separation technology used, the contents of a produced water
container, if completely discharged, does not contain oil in amounts
that may be harmful, as described in 40 CFR part 110; the capacity of
the exempted containers would not be counted in oil storage capacity.
The exemption extends to flowlines and other appurtenances downstream of
a produced water tank that is exempted by the new produced water
container exemption, as these lines and appurtenances are also subject
to a PE evaluation certifying that any discharge including a complete
failure of the line will not result in a discharge in quantities that is
harmful as defined in part 110 of this chapter. However, flowlines and
appurtenances connected to a nonexempt produced water container could
cause a discharge in quantities that may be harmful as described in part
110 and thus are subject to the rule’s requirements.

For those produced water containers that cannot meet the criterion for
the exemption under this rule, the facility owner/operator has the
option to apply general secondary containment requirements and conduct
visual inspections, maintenance and corrective action, in lieu of sized
secondary containment, when a PE describes in the Plan and certifies
that a practice is established that is designed to remove the amount of
free-phase oil from the produced water container on a scheduled and
routine basis. These containers are counted toward the aggregate storage
capacity.  The Agency believes that the approaches for produced water
containers promulgated in this rule amendment are a logical outgrowth of
the three approaches discussed in the proposal and the comments
received.

In deciding how to proceed, EPA acknowledges that the amount of oil by
volume observed in produced water storage containers varies depending on
a number of factors, including, but not limited to, separator
efficiency, age and formation of the oilfield, and use of heat or
chemical separation. EPA agrees with commenters that after separation,
the amount of oil remaining in produced water can be minimal given the
characteristics of the oilfield and facility/separator configuration.
Therefore, EPA agrees with commenters that a limited number of produced
water containers with minimal amounts of oil may be eligible for
exemption, and that certain produced water containers that are used for
oil/water separation should be subject to differentiated requirements
and is allowing a PE to make the determination whether a given produced
water container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii).  EPA
believes the exemption criteria address the commenters’ concerns about
regulating produced water containers that do not contain oil in harmful
quantities.  Additionally, if the production facility has certain types
of oil discharges or fails to meet the requirements of this part of the
rule, the facility will no longer be eligible for the exemption or the
streamlined requirements.

Further, EPA believes the approach for non-exempt containers, featuring
a compliance option with differentiated requirements and general
secondary containment, provides appropriate regulatory requirements for
these produced water containers. The alternate requirements finalized in
this action take into consideration the commenters suggestions regarding
the proposed alternatives. The finalized set of requirements include:
implementation of a procedure designed to separate the free-phase oil
that may accumulate on the surface of the produced water, inspection or
testing of the produced water container and components, prompt removal
of or initiation of actions to contain and stabilize any oil
accumulations, and corrective action should a discharge occur. The
Agency did not include integrity testing in the finalized set of
additional requirements.  Produced water containers used specifically
for oil/water separation serve the same purpose as separators or
flow-through process vessel and thus, EPA is applying similar
requirements to these containers.

EPA also agrees with the comment that when an oil layer in a produced
water container becomes recoverable, the oil is typically skimmed and
pumped.  Consequently, EPA’s final rule requiring removal and
reduction of free-phase oil from the produced water container is
consistent with industry practice. Whatever procedure is used must be
developed by a PE, described in the Plan, and implemented by the owner
or operator to reduce the amount of free-phase oil which may accumulate.
Records of implementation of these procedures must be maintained in
accordance with §112.7(e).

Spill data and potential for discharge. EPA presented data on oil
discharges for production facilities which has a number of limitations.
These facilities are a source oil discharges; however, EPA is balancing
environmental concerns with the unique properties of these facilities in
an effort to develop appropriate requirements for this sector. Thus, EPA
is tailoring the requirements for produced water containers by providing
an alternative containment requirement coupled with an oil skimming
program and providing an exemption for produced water containers at
production facilities, certified by a PE, that will not cause harm upon
a discharge from the container. EPA is concerned with the risk that
these facilities pose and will be reviewing and evaluating the efficacy
of the relief finalized in this action. DOE did provide supplemental
information to EPA after the formal comment period has closed regarding
this issue.  EPA reviewed and evaluated this supplemental data during
the Agency action development process.  EPA drafted a paper evaluating
the DOE data.  Both the DOE and EPA document have been docketed.

Produced water is harmful.  EPA agrees that produced water can pose a
threat to the environment.  EPA also agrees that the SPCC regulations
should not regulate the storage of oil if the discharge of that oil is
not a violation of Section 311 of the Clean Water Act. Section 311(b)(3)
prohibits the discharge of oil into or upon navigable waters of the
United States or adjoining shorelines in such quantities as may be
harmful, as determined by the President. That determination is made in
40 CFR part 110. EPA does not agree that produced water containers are
eligible for the wastewater treatment exemption. However, the Agency
recognizes that, depending on the use, some produced water containers
may serve as oil/water separators, rather than bulk storage tanks, and
such containers should be regulated in a similar fashion as other
oil/water separators.  To address these concerns, EPA is providing an
exemption for certain produced water containers holding oil that would
not violate section 311(b)(3) if discharged, and a differentiated set of
requirements for other produced water containers at oil production
facilities that are used for oil/water separation.  EPA is also
promulgating a definition of produced water container to clarify which
containers will be eligible for this rule amendment.

Substantial harm. EPA did not propose to revise FRP requirements for
produced water containers or any other type of oil storage container and
therefore that change would be outside the scope of today’s final
action.

Supplemental proposal. The Agency does not agree that a supplementary
proposal is necessary.  The Agency believes that the approaches for
produced water containers promulgated in this rule amendment are a
logical outgrowth of the three approaches discussed in the proposal and
the comments received. The Agency believes that it provided adequate
descriptions of potential components of regulatory provisions to address
produced water containers to provide a meaningful opportunity for
comment by interested parties. The Agency believes that the options
finalized in this action incorporate the appropriate elements from the
three approaches discussed in the proposal, based on the Agency’s
review and consideration of the comments received.

XII.G.ii	 Distinguishing Characteristics from Other Containers Holding
Oil Mixtures

Issue: EPA requested comment on the characteristics of produced water
containers at production facilities that may uniquely distinguish these
containers from containers used at other types of facilities that hold
oil mixtures.

COMMENT

Low oil production.  One commenter noted that large amounts of water or
brine with extremely low oil content, “perhaps 0.1% or less,” are
produced from wells in West Virginia. (103)

Other oil mixtures.  One commenter questioned why EPA regulates
agricultural mixes (e.g., pesticides) more strictly than produced water,
which can contain up to 10% oil.  The commenter further notes that in
the event of a spill, the water will carry the oil further, and onto the
property not owned by the oil company. (67)

NPDES-permitted ponds.  One commenter suggested that due to the very low
oil content in its NPDES-permitted ponds, they should not be subject to
the SPCC rule requirements and should not be included in the storage
capacity calculations for FRP applicability. (137) The commenter also
noted that the produced water ponds should be exempt from the SPCC rule
requirements and should not be included as storage capacity as the
burden of compliance with SPCC and FRP requirements creates only minimal
reduced risk from harmful quantities of oil, and the permitted
discharges from these ponds can be put to beneficial use. (137) One
commenter was concerned that few NPDES permits are issued for production
facilities so pollutants from these facilities are in fact not being
addressed. (140)

RESPONSE

Low oil production.  EPA agrees with commenters that certain produced
water containers with minimal amounts of oil may be eligible for
exemption and certain produced water containers that are used for
oil/water separation should be subject to differentiated requirements
and is allowing a PE to make the determination whether a given produced
water container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii). EPA believes
the exemption criteria (certification by the PE that no discharge from
the produced water container, including a complete loss of the capacity
of the container, could cause a discharge in quantities that may be
harmful as described in 40 CFR part 110) addresses the commenters’
concerns about regulating produced water containers that do not contain
oil in harmful quantities.  Further, EPA believes the approach for
non-exempt containers, featuring differentiated requirements and general
secondary containment, provides appropriate regulatory requirements for
these produced water containers.

Other oil mixtures. EPA agrees that in certain discharge situations, oil
may be transported farther when it is part of an oil/water mixture than
a discharge of pure oil. For this reason, EPA has finalized an exemption
that requires a PE to evaluate a whether a discharge from a produced
water container has the ability to cause harm to navigable waters or
adjoining shorelines.  The PE must take into account, among other
factors, the ability of the water phase to transport oil, when
certifying this exemption. EPA is also exempting certain pesticide
mixtures contained in certain tanks and equipment that are regulated
under other Federal environmental programs.

NPDES-permitted ponds. EPA disagrees with the comment that all
NPDES-permitted ponds should be exempt from SPCC regulation. EPA is
finalizing an exemption for certain produced water containers. The
exemption requires that a PE certify that a discharge from each produced
water container (in this case a pond) will not cause harm to navigable
waters or adjoining shoreline. Certain ponds, containers and equipment
at NPDES-permitted facilities storing, treating, recycling, and
recovering crude oil from produced water would remain regulated under
the SPCC program if the facility does not satisfy the exemption criteria
for produced water containers.

XII.G.iii Oil and Water Separation/Skimming Treatment and Efficiency

Issue: EPA requested comment, and supporting data, on the efficiency of
oil and water separation and treatment at onshore production facilities,
how the efficiency of oil-water separators changes over time as
equipment ages and production of oil from the formation evolves, and the
efficiency of oil skimming on oil volume.

COMMENT

Produced water same as wastewater.  One commenter stated that once
primary separation has occurred, “there is no difference between
produced water treatment at a production facility and wastewater
treatment at a non-production facility. (75)  Another commenter
indicated that the amount of oil remaining in the water after treatment
is minimal and therefore should be exempt from all SPCC requirements.
(122) Similarly, another commenter indicated that “some states believe
that after the last separation of the oil from the produced water, SPCC
regulations should no longer apply. The commenter added that these
produced waters are of minimal threat to the environment and the SPCC
requirements are, in some states' opinion, ‘overkill.’ The commenter
stated that there are numerous studies that analyze oil content in
produced water that are available from state and federal agencies and
that the inclusion of treated produced water that is being stored prior
to injection is an expansion of EPA's jurisdiction under oil pollution
law. (158)

Residence time and formation age.  One commenter suggested the most
important factor in oil-water separation is the residence time since
“the longer the mixture is given to separate, the more oil will be
released.”  The commenter adds that as the production formation ages,
secondary recovery using water is applied so that by the end a well may
produce as little as 10 percent oil before separation. (86)

Inefficiency of separation and treatment.  One commenter noted that 90%
of produced water is transferred to a separate facility to be reinjected
(57%) or for disposal (36%) where the amount of oil recovered is
significant enough for states to define this type of oil in their
regulations and to impose a severance tax at rates similar to the rates
imposed on primary crude. The commenter also noted that this transferred
oil has already gone through some separation and/or treatment at the
production facility. (140)

DOE and effluent limitation sources.  One commenter noted that as
pointed out by the U.S. Department of Energy (DOE), published data used
to establish national effluent limitations for coastal oil and gas
production facilities show that the oil content of produced water in
tanks after initial separation is low, e.g., averaging 50 ppm, with a
maximum of 200 ppm in samples taken. The commenter added that a study
found a mean value of total recoverable oil and grease settling effluent
concentration 52,956 micrograms/liter and that Best Practicable Control
Technology Currently Available (BPT) effluent limitations restrict the
oil and grease concentrations of produced water to a maximum of 72 mg/l
for any one day and to a 30-day average of 48 mg/l. The commenter added
that published information used to establish national effluent
limitations for coastal oil and gas production facilities discuss the
efficiency of control and treatment technologies and found that numerous
end-of-the-pipe treatment methods that can achieve this level of
effluent quality. (123)

RESPONSE

Produced water same as wastewater. EPA disagrees that produced water
treatment is the same as wastewater treatment.  The production process
is an effort to maximize oil recovery by eliminating the water and gas
phases. This separation process involves primary physical and at times
chemical separation methods to segregate the water from the oil phase to
maximize oil recovery. Wastewater treatment is the treatment of water
not oil.  Wastewater treatment does involve primary separation and
treatment methods, but diverges from produced water treatment in that
additional secondary (biological) and tertiary treatment of the water
phase is used to remove dissolved and suspended oil concentrations.
While a production facility will not typically be eligible for the
existing wastewater treatment exemption, EPA has finalized an exemption
for certain produced water containers, so long as they are certified by
a PE to ensure that a discharge from the produced water container will
not cause harm as defined in 40 CFR part 110.

Residence time and formation age. EPA agrees with commenters’
assertions regarding the impact of the formation age and that as the
formation ages often oil to water ratios decrease. EPA also agrees that
residence time is a major factor in separation efficacy. The effect of
residence time is precisely the reason EPA continues to regulate
produced water containers holding oil and water mixtures.  As the
commenter points out, the production liquids may have 10 percent or
lower oil to water mixtures. While production equipment is designed to
maximize oil recovery, certain amounts of dissolved and emulsified oil
pass through the separation equipment. This oil then comes out of
solution in the produced water container after residence time in the
container, which can result in significant accumulations of oil even if
the produced water entering this storage container contains only a small
percentage of oil. Thus, as the commenter points out, the impact of this
residence time on the amount of free-phase oil accumulating in a
produced water container (which is often the final storage container in
the production process) is significant. This accumulated oil and its
potential to cause harm is why EPA is not providing an outright
exemption for all produced water containers.

Inefficiency of separation and treatment.  EPA agrees that there may be
inefficiency in oil water separation and treatment of oil water mixture.
However, EPA acknowledges that the amount of oil by volume observed in
produced water storage containers varies depending on a number of
factors, including, but not limited to, separator efficiency, age and
formation of the oilfield, use of heat or chemical separation and
residence time. EPA agrees with commenters that after separation, the
amount of oil remaining in produced water can be minimal given the
characteristics of the oilfield and facility/separator configuration.
EPA recognizes that some oil production facilities may have (or may want
to install) separation equipment that performs at a highly efficient
rate. In these cases, the contents of the produced water containers
downstream of such separation equipment may not contain oil in
quantities that may cause harm, as described in 40 CFR part 110.
Therefore, EPA agrees with commenters that certain produced water
containers with minimal amounts of oil may be eligible for exemption,
and that certain produced water containers that are used for oil/water
separation should be subject to differentiated requirements; EPA is
allowing a PE to make the determination whether a given produced water
container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii). EPA believes
the exemption criteria (certification by the PE that no discharge from
the produced water container, including a complete loss of the capacity
of the container, could cause a discharge in quantities that may be
harmful as described in part 110) addresses the commenters’ concerns
about regulating produced water containers that do not contain oil in
harmful quantities.  Further, EPA believes the approach for non-exempt
containers, featuring differentiated requirements and general secondary
containment, provides appropriate regulatory requirements for these
produced water containers.

 DOE and effluent limitation sources. EPA acknowledges that the amount
of oil by volume observed in produced water storage containers varies
depending on a number of factors, including, but not limited to,
separator efficiency, age and formation of the oilfield, use of heat or
chemical separation and residence time. EPA agrees with commenters that
after separation, the amount of oil remaining in produced water can be
minimal given the characteristics of the oilfield and facility/separator
configuration. EPA recognizes that some oil production facilities may
have (or may want to install) separation equipment that performs at a
highly efficient rate. In these cases, the contents of the produced
water containers downstream of such separation equipment may not contain
oil in quantities that may cause harm, as described in 40 CFR part 110.
Therefore, EPA agrees with commenters that certain produced water
containers with minimal amounts of oil may be eligible for exemption,
and that certain produced water containers that are used for oil/water
separation should be subject to differentiated requirements; EPA is
allowing a PE to make the determination whether a given produced water
container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii). EPA believes
the exemption criteria (certification by the PE that no discharge from
the produced water container, including a complete loss of the capacity
of the container, could cause a discharge in quantities that may be
harmful as described in part 110) addresses the commenters’ concerns
about regulating produced water containers that do not contain oil in
harmful quantities.  The exemption for flowlines and other appurtenances
downstream of a produced water tank that is exempted by the new produced
water container exemption, is appropriate, as these lines and
appurtenances are subject to a PE evaluation certifying that any
discharge including a complete failure of the line will not result in a
discharge in quantities that is harmful as defined in part 110 of this
chapter. Further, EPA believes the approach for non-exempt containers,
featuring differentiated requirements and general secondary containment,
provides appropriate regulatory requirements for these produced water
containers.

XII.G.iv Equipment Failure Frequency and Consequences

Issue: EPA requested comment and supporting data on the frequency and
consequences of equipment failure.

COMMENT

State data.  One commenter suggested EPA review data on the source and
cause of oil spills from produced water containers in Texas from 2001
through the present.  The commenter stated that Texas regulations
require reporting of any oil spill of five barrels or greater and all
spills of oil to water. The commenter added that in Texas, with 151,205
producing oil wells and 72,237 producing gas wells, there were 36 spills
of oil to ‘water’ in calendar year 2004, four of which were caused
by lightening, hail and other ‘Acts of God’.  The commenter further
stated that in calendar year 2005, with 151,286 producing oil wells and
76,510 producing gas wells, there were 14 spills of oil to ‘water’
with one of the spills caused by an ‘Act of God’. (123)

RESPONSE

State data. EPA provided a review of national data regarding spills from
produced water containers, which included data from Texas. For more
information, consult the Considerations for the Regulation of Onshore
Oil Exploration and Production Facilities Under the Spill Prevention,
Control, and Countermeasures Regulation, May 30, 2007, in the docket for
this rulemaking (  HYPERLINK
"http://www.regulations.gov/fdmspublic/component/fdmsSearchResult/fdms_d
ocket_detail?d=EPA-HQ-OPA-2007-0584&docType=fdms_docket&returnUrl=http%3
A%2F%2Fwww.regulations.gov%2Fsearch%2F&Reload=1215718427291&__dmfFrameId
=FdmsPubMain_content_0" \o "EPA-HQ-OPA-2007-0584-0015"
EPA-HQ-OPA-2007-0584-0015 ).

XII.G.v	  Alternative Options

COMMENT

Exemption from Sized Secondary Containment with Additional Measures for
Produced Water Containers

Generally support. Several commenters expressed support for exemption
from sized secondary containment for produced water containers. (108,
111)

Inconsistent with statute.  A commenter asserts that an exemption of
produced water storage containers from sized secondary containment
requirements under 40 C.F.R. §112.9(c) is inconsistent with 33 U.S.C.
1321(j)(5)(D). (127)

Rulemaking procedure. A commenter asserts that at least some of the
proposed “approaches” to these amendments were not in the EPA
proposal (EPA-HQ-OPA-2007-0584-0021) sent to the Office of Management
and Budget, and that the EPA proposal (EPA-HQ-OPA-2007-0584-0015)
included a discussion of oil spill risks from produced water storage
tanks and the increasing frequency and/or volume of spills from this
sector. The commenter states that if this is true, then EPA omits
information that is material to the ability of the public to weigh the
statutory requirement against the arguments of the oil industry and the
U.S. Department of Energy that, at least in the case of produced water
containers, ‘these containers have only incidental amounts of oil and
a low risk of discharge.’ 72 FR 58414. (127)

RESPONSE

Generally support. The Agency is finalizing an alternative to sized
secondary containment requirements for a produced water container that
does not meet conditional exemption criteria. The alternate requirements
finalized in this action take into consideration the commenters
suggestions regarding the proposed alternatives. The finalized set of
requirements include: implementation of a procedure designed to separate
the free-phase oil that may accumulate on the surface of the produced
water, inspection or testing of the produced water container and
components, prompt removal of or initiation of actions to contain and
stabilize any oil accumulations, and corrective action should a
discharge occur.

Inconsistent with statute. The Agency disagrees with the comment arguing
that an exemption for produced water containers is inconsistent with 33
U.S.C. 1321(j)(5)(D). The Agency’s authority to promulgate the SPCC
regulations is found in Section 311(j)(1)(C) of the Clean Water Act, 33
U.S.C. 1321(j)(1)(C). Section 311(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 statutory provision gives the Agency broad discretion to
establish the requirements under the SPCC rule. Also, Section
311(j)(5)(D), 33 U.S.C. 1321(j)(5)(D), lists the requirements for
facility response plans.  The Agency has promulgated regulations for
facility response plans in 40 CFR §§112.20 and 21.

Rulemaking procedure. The Agency believes that the approaches for
produced water containers promulgated in this rule amendment are a
logical outgrowth of the three approaches discussed in the proposal and
the comments received.

XII.G.vi  DOE Options

Issue: As requested by DOE, EPA sought comment on an exemption for
produced water treatment facilities or parts thereof from the SPCC
regulation.

COMMENTS

Generally support. Several commenters expressed support for exemption of
produced water containers from SPCC regulation (43, 75, 76, 85, 105,
108, 111, 133, 154) and an exemption for produced water treatment
facilities. (86, 96, 105, 150)  One commenter added that treating
produced water like oil “substantially undermines the efforts made in
the proposal to address small producer concerns”. (76) One commenter
expressed concern with the cost of complying with SPCC requirements for
produced water containers. (105)

Generally oppose.  Several commenters opposed any reduced requirements
for produced water containers (33, 69, 127, 138, and 140)

Include in wastewater treatment exemption.  Several commenters suggested
produced water located at oil and gas facilities should be subject to
the wastewater treatment exemption. (75, 85, 86, 94, 103, 111, 137)  One
commenter stated that produced water containers downstream of primary
separation should be included with the wastewater treatment exemption. A
commenter recommended that conventional oil and natural gas production
facilities and CBNG production facilities that treat produced water
prior to discharge via NPDES or state-equivalent (SPDES) permitted
outfalls be included in the Wastewater Treatment Facility Exemption. The
commenter added that the Beneficial Use Subcategory (Subpart E, 40 CFR
435.50) of the Oil and Gas Extraction Point Source Category (40 CFR 435)
establishes effluent limitations guidelines for the discharge of
produced water from conventional oil and natural gas production and that
these wastewater treatment facilities or parts thereof are subject to
NPDES or state-equivalent permitting requirements that involve operating
and maintaining the facility to prevent discharges (40 CFR 122.41(e)).
The commenter added that conventional production facilities and CBNG
production facilities that produce dry gas are already included in the
Wastewater Treatment Facility Exemption as a result of the settlement
agreement and recommended that EPA include the settlement agreement
language concerning dry gas facilities in the final rule. (75)

Discharges are regulated. Two commenters suggested that discharges are
already regulated by state law, the National Pollutant Discharge
Elimination System (NPDES) program, and the Safe Drinking Water
Underground Injection Control (UIC). (76, 85, 94, 111)  One commenter
stated that in UIC operations involving produced water or instances
where produced water has been piped to another location, the presence of
oil on top of the water is even less likely than in a produced water
tank. The commenter added that water that is transferred via pipeline is
extracted from near the bottom of a water tank so any oil that has
accumulated in the tank could not reach the pipeline unless the tank
level reached the intake pipe. The commenter continued that this is
unlikely since the tanks usually have level indicators that would shut
off the transfer pump. The commenter suggested that produced water tanks
and UIC operations that employ water be exempt from SPCC regulation and
that inspection criteria could be developed in order to qualify for
exemption. (133)

Remove secondary containment requirements.  One commenter suggested EPA
remove secondary containment for produced water containers, because
integrity testing of the typically closed top fiberglass would be
problematic, these containers are located in areas that make integrity
testing difficult and would require the shut-off of wells, and the cost
and limited availability of companies that perform vessel integrity
testing is a concern.  (85)

RESPONSE

Exemption for produced water treatment facilities or parts thereof

Generally support.  After evaluating the comments received, EPA is
modifying the requirements at §112.9(c) to exempt produced water
containers that meet certain conditions, and to allow an alternative
management scheme (which is optional) for produced water containers that
are used for oil/water separation in lieu of sized secondary
containment.  In deciding how to proceed, EPA acknowledges that the
amount of oil by volume observed in produced water storage containers
varies depending on a number of factors, including, but not limited to,
separator efficiency, age and formation of the oilfield, and use of heat
or chemical separation. EPA agrees with commenters that after
separation, the amount of oil remaining in produced water can be minimal
given the characteristics of the oilfield and facility/separator
configuration. Therefore, EPA agrees with commenters that certain
produced water containers with minimal amounts of oil may be eligible
for exemption, and that certain produced water containers that are used
for oil/water separation should be subject to differentiated
requirements; EPA is allowing a PE to make the determination whether a
given produced water container should be eligible for an exemption from
the rule or for alternative requirements as described in
§112.9(c)(6)(ii). EPA believes the exemption criteria (certification by
the PE that no discharge from the produced water container, including a
complete loss of the capacity of the container, could cause a discharge
in quantities that may be harmful as described in part 110) addresses
the commenters’ concerns about regulating produced water containers
that do not contain oil in harmful quantities.  Further, EPA believes
the approach for non-exempt containers, featuring differentiated
requirements and general secondary containment, provides appropriate
regulatory requirements for these produced water containers.

The Agency does not agree, however, with commenters that produced water
located at oil and gas facilities should be subject to the wastewater
treatment exemption. The basis for the conditional exemption in these
finalized amendments is whether oil is present in quantities that may be
harmful. As stated in the preamble to the 2002 amendments to the SPCC
rule, the goal of an oil production, recovery or recycling facility is
to maximize the production and recovery of oil, which presumes that oil
is present in quantities that may be harmful (67 FR 47068, July 17,
2002).

Generally oppose. EPA disagrees with commenters because the Agency
believes that there are alternative options for produced water
containers that can provide the regulated community compliance
flexibility while continuing to effectively protect the environment from
discharges of quantities of oil that may be harmful. The options the
Agency is providing for produced water containers are based on the
facility’s site-specific characteristics. Many commenters claim that
the SPCC oil spill prevention requirements are inappropriately applied
to produced water containers, arguing that in certain cases these
containers hold mostly water with very low concentrations of oil or that
produced water containers should be exempt under the exemption for
wastewater treatment. EPA agrees that the SPCC regulations should not
regulate the storage of oil if the discharge of that oil is not
prohibited under section 311 of the Clean Water Act.  Section 311(b)(3)
prohibits the discharge of oil into or upon navigable waters of the
United States or adjoining shorelines in such quantities as may be
harmful, as determined by the President.  That determination is made in
40 CFR part 110.

EPA believes that produced water containers should not be eligible for
the wastewater treatment exemption.  However, the Agency recognizes
that, depending on the use, some produced water containers may serve as
oil/water separators, rather than bulk storage tanks, and such
containers should be regulated in a similar fashion as other oil/water
separators.  To address these concerns, EPA is providing an exemption
for certain produced water containers holding oil that would not violate
section 311(b)(3) if discharged, and a differentiated set of
requirements for other produced water containers at oil production
facilities that are used for oil/water separation.  EPA is also
promulgating a definition of produced water container to clarify which
containers will be eligible for this rule amendment. The Agency believes
that the approaches for produced water containers promulgated in this
rule amendment are a logical outgrowth of the three approaches discussed
in the proposal and the comments received.

Include in wastewater treatment exemption.  The Agency does not agree
with commenters that produced water containers located at oil and gas
facilities should be subject to the wastewater treatment exemption. The
basis for the conditional exemption in these finalized amendments is
whether oil is present in quantities that may be harmful. As stated in
the preamble to the 2002 amendments to the SPCC rule, the goal of an oil
production, recovery or recycling facility is to maximize the production
and recovery of oil, which presumes that oil is present in quantities
that may be harmful (67 FR 47068, July 17, 2002).  The production
process is an effort to maximize oil recovery by eliminating the water
and gas phases.  This separation process involves primary physical and
at times chemical separation methods to segregate the water and gas
phases from the oil phase to maximize oil recovery. Wastewater treatment
is the treatment of water not oil.  Wastewater treatment does involve
primary separation and treatment methods, but diverges from produced
water treatment in that additional secondary (biological) and tertiary
treatment of the water phase is used to remove dissolved and suspended
oil concentrations.  While a production facility will not be eligible
for the existing wastewater treatment exemption, EPA has finalized an
exemption for certain produced water containers, so long as they are
certified by a PE to ensure that a discharge from the produced water
container will not cause harm as defined in 40 CFR part 110.

Discharges are regulated. EPA agrees with commenters that oil production
facilities may be regulated under the NPDES, UIC, other Federal
regulations, and state regulations. However, the Agency’s review of
the scope of these programs and regulations indicates that these
regulations do not necessarily provide an equivalent level of protection
from accidental and incidental discharges of harmful quantities of oil
to those required under the national SPCC requirements. Therefore these
programs cannot serve solely as a substitute for an SPCC Plan at a
facility.  EPA acknowledges that onshore oil production facilities may
discharge directly to surface waters pursuant to an NPDES permit and
that technology-based discharge standards (effluent guidelines) for
onshore produced water is “zero discharge” (with two exceptions:
produced water generated west of the 98th meridian that is put to
beneficial use during the period of discharge (set to 35 mg/L) and
stripper wells). An NPDES permit typically includes the guideline that
the discharge “shall be free from substances in amounts which would
cause a visible sheen or visible deposits in the receiving water or
adjoining shoreline.” Because these permitted facilities are required
to eliminate harmful quantities of oil in produced water, a produced
water container at the facility may be eligible for the exemption
finalized in this notice. Additionally, the NPDES requirements may be
used by a PE to address certification elements (produced water
characteristics in the container and any associated piping and
appurtenances downstream of the container, procedures or maintenance)
required for the exemption.

Remove secondary containment requirement.  After evaluating the comments
received, EPA is modifying the requirements at §112.9(c) to exempt
certain produced water containers, that must meet certain conditions and
to allow an alternative management scheme (which is optional) for
produced water containers that are used for oil/water separation in lieu
of sized secondary containment.  In deciding how to proceed, EPA
acknowledges that the amount of oil by volume observed in produced water
storage containers varies depending on a number of factors, including,
but not limited to, separator efficiency, age and formation of the
oilfield, and use of heat or chemical separation. EPA agrees with
commenters that after separation, the amount of oil remaining in
produced water can be minimal given the characteristics of the oilfield
and facility/separator configuration. Therefore, EPA agrees with
commenters that certain produced water containers with minimal amounts
of oil may be eligible for exemption and certain produced water
containers that are used for oil/water separation should be subject to
differentiated requirements and is allowing a PE to make the
determination whether a given produced water container should be
eligible for an exemption from the rule or for alternative requirements
as described in §112.9(c)(6)(ii).  EPA believes the exemption criteria
(certification by the PE that no discharge from the produced water
container, including a complete loss of the capacity of the container,
could cause a discharge in quantities that may be harmful as described
in part 110) addresses the commenters’ concerns about regulating
produced water containers that do not contain oil in harmful quantities.
 EPA believes that an exemption for flowlines and other appurtenances
downstream of a produced water tank that is exempted by the new produced
water container exemption, is also appropriate, as these lines and
appurtenances are subject to a PE evaluation certifying that any
discharge including a complete failure of the line will not result in a
discharge in quantities that is harmful as defined in part 110 of this
chapter. Further, EPA believes the approach for non-exempt containers,
featuring differentiated requirements and general secondary containment,
provides appropriate regulatory requirements for these produced water
containers.

XII.G.vi Other Suggested Approaches

COMMENT

Separation of upstream and downstream.  Several commenters suggested
exempting produced water containers according to their location upstream
or downstream of separation (94, 111, 123, 129), including two
commenters that specifically suggested exemption using the wastewater
treatment exemption. (94, 111)  Two commenters cited the limited amounts
of oil after separation (123, 129), and the disproportionate risk of
discharge versus the cost of compliance (123).  One commenter added that
EPA’s inclusion of produced water is an expansion of EPA’s
jurisdiction under oil pollution law. (129)  One commenter recommended
that produced water facilities currently not covered under the
wastewater exemption be regulated as follows:  1. Downstream of primary
liquid separation, the produced water containers are subject to the
wastewater treatment exemption.  2. Upstream of and including primary
liquid separation, produced water containers are subject to bulk storage
requirements of §112.9(c) or flow-through process vessel requirements
subject to the general secondary containment §112.7(c). (111) Another
commenter agreed with this approach and stated that “if EPA is
unwilling to make that change, it should resolve the issue specifically
associated with produced water treatment ponds permitted under the NPDES
or a state-equivalent program by adopting the alternative regulatory
language to 40 C.F.R. §112.1(d)(6)” (94)

Reportable discharge. A commenter notes that a facility is subject to
the FRP requirements if the facility has had a reportable oil discharge
in an amount greater than or equal to 10,000 gallons within the last 5
years (40 C.F.R. §112.20(f)(1)(ii)(D)) and suggests that EPA takes the
view that a discharge of an oil/water mixture triggers this requirement
to the same extent that a comparable, pure oil discharge would trigger
the requirement. The commenter suggests that a discharge of water would
have a significantly less impact than an equivalent discharge of oil and
so the regulations should not lump produced water with oil for purposes
of FRP requirements. Instead, the commenter stated that EPA should
consider only the oil volume of the discharge for purposes of deciding
whether an FRP is required. (94)

PE discretion.  One commenter urged  EPA to allow the certifying
engineer to make the determination whether a given produced water tank
or oil/water separator should have secondary containment, rather than
arbitrarily including tanks that may or may not include measurable
amounts of oil. (103)

RESPONSE

Separation of upstream and downstream.  EPA agrees with the commenter
that the location of the produced water container should be a factor in
determining the scope of an exemption for these containers, and to
clarify which containers are subject to the requirements of
§112.9(c)(6), EPA  provided a definition of a produced water container
in §112.2.  EPA did not propose a definition for produced water
containers in October 2007, but EPA believes that the definition
promulgated in this notice is a logical outgrowth of the proposal.  In
the October 2007 proposal, EPA described produced water containers as
bulk storage containers “typically located within a tank battery at a
production facility where they are used to store well fluids after
separation and prior to subsequent use (e.g., re-injection or reuse),
further treatment, or disposal.”  72 FR 58413.  EPA asked for and
received comments on the characteristics of produced water containers
(72 FR 58414) and crafted a definition to establish the specific
containers eligible for this exemption consistent with the description
in the proposal. A produced water container is a bulk storage container
at an oil production facility used to store the produced water after
initial oil/water separation, and prior to reinjection, beneficial
reuse, discharge, or transfer for disposal.   Piping and appurtenances
downstream of the produced water container may include flowlines and
other appurtenances associated with injection and discharge. Thus, the
definition of produced water serves as a factor, based on the containers
location, in determining the applicability of the exemption.

	The Agency does not agree with commenters that produced water located
at oil and gas facilities should be subject to the wastewater treatment
exemption. The basis for the conditional exemption in these finalized
amendments is whether oil is present in quantities that may be harmful.
As stated in the preamble to the 2002 amendments to the SPCC rule, the
goal of an oil production, recovery or recycling facility is to maximize
the production and recovery of oil, which presumes that oil is present
in quantities that may be harmful (67 FR 47068, July 17, 2002).  The
production process is an effort to maximize oil recovery by eliminating
the water and gas phases.  This separation process involves primary
physical and at times chemical separation methods to segregate the water
from the oil phase to maximize oil recovery. Wastewater treatment is the
treatment of water not oil.  Wastewater treatment does involve primary
separation and treatment methods, but diverges from produced water
treatment in that additional secondary (biological) and tertiary
treatment of the water phase is used to remove dissolved and suspended
oil concentrations.  While a production facility will not be eligible
for the existing wastewater treatment exemption, EPA has finalized an
exemption for certain produced water containers, so long as they are
certified by a PE to ensure that a discharge from the produced water
container will not cause harm as defined in 40 CFR part 110.

	Finally, EPA agrees with commenters that oil production facilities may
be regulated under the NPDES, UIC, other Federal regulations, and state
regulations. However, the Agency’s review of the scope of these
programs and regulations indicates that these regulations do not
necessarily provide an equivalent level of protection from accidental
and incidental discharges of harmful quantities of oil to those required
under the national SPCC requirements. Therefore these programs cannot
serve solely as a substitute for an SPCC Plan at a facility.

Reportable discharge. EPA did not propose to amend the FRP requirements,
therefore any changes to the FRP rule would be outside the scope of the
proposal.

PE discretion.  EPA agrees that a certifying engineer should be allowed
a certain amount of discretion to make the determination whether a given
produced water tank should be regulated and/or the type of containment
that should be provided. Therefore, first, EPA is exempting produced
water containers (and associated flowlines and appurtenances downstream
of the produced water container) at oil production facilities from the
requirements of the SPCC rule when a PE certifies, as part of the SPCC
Plan, that based on the efficiency of the oil/water separation
technology used, the contents of a produced water container, if
completely discharged, does not contain oil in amounts that may be
harmful, as described in 40 CFR part 110.   Secondly, the facility
owner/operator has the option to apply general secondary containment
requirements and conduct visual inspections, maintenance and corrective
action, in lieu of sized secondary containment, when a PE describes in
the Plan and certifies that a practice is established that is designed
to remove the amount of free-phase oil from the produced water container
on a scheduled and routine basis.

XII.H	Clarification of the Definition of “Permanently Closed”
Containers

Issue: EPA sought to clarify concerns expressed by the regulated
community over the requirements for permanently closing a container, as
described in the definition of ‘‘permanently closed’’ at
§112.2.

COMMENT

Support

Generally support.  Two commenters expressed support for EPA’s
proposed clarification that permanently closed containers need neither
be removed from facilities nor be rendered permanently out of use in the
future. (96, 114)

Oppose

Cost of removing liquid and sludge.  One commenter expressed concern
that the cost of closing a container would be prohibitive, causing
premature abandonment of the operation, and requiring a container to be
cleaned is not necessary since the container would remain within the
diked area. (31)

Other Suggested Alternatives

Temporary closure.  One commenter suggested that small containers with a
capacity between 500 and 1,500 gallons used for fueling and maintenance
be allowed to be temporarily closed and exempt from SPCC requirements
when closed.  The commenter added that these containers are typically
used for special projects and when not in use are stored empty at a
construction site where they would pose no threat of a discharge. (154)
One commenter suggested additional clarification stating that containers
not in use can remain in place with a minimum of cleaning and
preparation after a retailer has permanently sealed unused oil
containers that remain on-site at the facility. (45)

Definition of production facility excludes closed containers. A
commenter suggests that per the definition of Production Facility
proposed by EPA, sealing an empty tank, removes the tank from being part
of the Production Facility. The commenter then argues that cleaning of
the tank or vessel is not required for Plan compliance. The commenter
added that a closed tank or vessel is not ‘equipment (including but
not limited to workover equipment, separation equipment, or auxiliary
non-transportation-related equipment) used in the production,
extraction, recovery, lifting, stabilization, separation or treating of
oil, or associated storage or measurement and recommended that EPA
concur with its interpretation of Production Facility so the removal
from service of a empty tank or vessel within or outside of a diked
enclosure removes the container from being part of the Production
Facility. The commenter also encouraged EPA to continue applying RCRA
Exploration and Production sector exemption to closed Production
Facilities. (31)

Need for flexibility.  One commenter suggested EPA modify its position
on permanently closed containers so that a container removed from
service can be placed back into service with minimal operational effort
so that farmers and agribusiness can acquire storage capacity
flexibility in response to variable production rates and economic
conditions. (104)

RESPONSE

Generally support.  EPA reiterates the statement it made in the preamble
to the July 2002 amendments to the SPCC rule: “If a tank is not
permanently closed, it is still available for storage and the
possibility of a discharge as described in §112.1(b), remains. Nor does
a short time period of storage eliminate the possibility of such a
discharge. Therefore, a prevention plan is necessary. A tank closed for
a temporary period of time may contain oil mixed with sludge or residues
of product, which could be discharged. Discharges from these facilities
could cause severe environmental damage during such temporary storage
and are therefore subject to the rule” (67 FR 47059).

Cost of removing liquid and sludge.   EPA does not agree that it is
appropriate to exempt containers from the SPCC requirements without
requiring that all liquid and sludge be removed, even if the container
remains in an area that is diked and it is for a temporary period of
time.  The Agency recognizes that variable economic conditions and
production rates at an oil production facility may cause certain
containers to be unused for long periods of time. One commenter
suggested that such containers would remain in the diked area and thus,
the potential for oil to be discharged would be minimal. However, if a
container was no longer subject to the SPCC rule, there would be no
requirement that it be contained in a diked area or that any precautions
be taken to prevent the discharge of oil to navigable waters or
adjoining shorelines.  Also, EPA does not agree that cleaning a tank is
cost-prohibitive and may shut in wells prematurely. The decision to
clean and close a container in accordance with the SPCC provision is
typically made by an owner or operator who can determine whether it is
cost-effective to close the tank or to let it remain in service and not
incur the costs associated with closure, including cleaning.

Temporary closure.  EPA did not propose a definition of temporary
closure and to finalize one would be outside the scope of this
rulemaking. A “temporary closure” would be intended for situations
where containers would only be closed for short periods of time, and
arguably need less stringent requirements than a permanent closure. The
significant difference in closure requirements between EPA’s current
closure “permanent” requirements and the suggested “temporary”
closure requirements appears to be the removal of liquid and sludge from
the container and connecting lines. EPA believes that allowing liquid
and sludge to remain in the container, without the benefit of the SPCC
rule protections creates the potential for a discharge, regardless of
the size of the container. However, a container that meets the
definition of permanently closed can be kept on site, if it is used on a
temporary basis.  If the container is returned to service, it must be
incorporated in the facility’s SPCC Plan.

Definition of production facility excludes closed containers.  The
Agency disagrees with the comments suggesting that the owner or operator
need only “seal” a tank without requiring that all liquid and sludge
be removed in an effort not to be subject to the SPCC rule. For a
container to be considered permanently closed at an oil production
facility, as well as at any other SPCC-regulated facility, all liquid
and sludge must be removed from the container and connecting lines, all
connecting lines and piping must be disconnected from the container and
blanked off, all valves, except ventilation valves, must be closed and
locked, and conspicuous signs must be posted on each container stating
that it is a permanently closed container and noting the date of
closure. Once permanently closed, a container is no longer required to
be counted toward the total facility storage capacity, nor is it subject
to the other requirements under the SPCC rule (such as secondary
containment).

Need for flexibility.  The definition of “permanently closed” does
not require that a container be removed from the facility; permanently
closed containers may be brought back into use as needed for variations
in production rates and economic conditions. However, a facility owner
or operator should review state and local regulations, which may have
additional requirements when the container is brought back into service.
EPA believes that the permanent closure provisions require actions that
render the container unavailable for oil storage, by requiring that all
connecting lines and piping must be disconnected from the container and
blocked off, and that all valves (except ventilation valves) must be
closed and locked, thus preventing accidental spills where the container
is inadvertently filled with oil. These provisions also serve as a clear
indicator as to the status of a container and whether it is considered a
regulated container under this rule and part of the storage capacity of
the facility. EPA believes that these requirements are reasonable and
provide the flexibility of allowing the container to remain on site for
future use.

XII.I	Oil and Natural Gas Pipeline Facilities

Issue: EPA and the Department of Transportation (DOT) will continue to
to address jurisdictional issues associated with the 1971 Memorandum of
Understanding (MOU) to more clearly define the jurisdictional scope over
oil and gas related infrastructure by delineating the specific equipment
and appurtenances that are part of the pipeline system subject to DOT
jurisdiction. In the case of a natural gas pipeline, EPA and DOT will
evaluate the appropriate jurisdictional divide for equipment such as
compressor stations, lubricating systems and tanks.

COMMENT

Generally support.  Several commenters expressed support for EPA and DOT
in committing to a revision of the 1971 MOU, noting that a guideline
memorandum issued by EPA and DOT in 2000 failed to achieve its intended
purpose and has created confusion concerning the application of SPCC
requirements to breakout tanks that are subject to DOT’s pipeline
safety regulation (49 CFR part 195). (78, 84, 96, 101, 111, 154) Several
of these commenters urged EPA and DOT to withdraw or modify the 2000
memorandum and develop additional guidance, with industry input, for
eliminating dual regulation of pipeline systems.  One commenter
representing natural gas pipeline operators urged EPA and DOT to
designate the specific equipment and appurtenances that are part of
natural gas pipeline systems subject to the SPCC exemption in 40 CFR
112.1. (78) Two commenters suggested EPA avoid dual jurisdiction, as
being subject to two programs that overlap in coverage presents
difficulties for facilities trying to be in compliance. (84, 111)

Codify exemption for dry gas.  Several commenters suggested EPA include
the exemption for dry gas production facilities in the rule language to
ensure the language is not interpreted differently among the regions.
(94, 111, 137)

Secondary containment. One commenter expressed concern regarding EPA’s
proposed clarification regarding secondary containment for onshore
facilities, noting that in amending the general secondary containment
requirements in §112.7(c) to be consistent with the SPCC Guidance for
Regional Inspectors, EPA is extending jurisdiction to
transportation-related facilities that are outside the jurisdiction of
the Agency. (83)

Primary function of facility.  Two commenters suggested EPA determine
Agency jurisdiction according to the primary function of the facility.
One commenter noted that DOT should exert sole jurisdiction over
facilities that primarily provide breakout or pipeline terminus tankage
even if some product movement into and/or out of a facility is not by
pipeline. (101) Another commenter suggested a possible methodology for
determining a facility’s primary function based upon the percentage of
throughput by a particular mode to delineate jurisdiction. (111)

Inter- and intra-facility gathering lines. Several commenters suggested
that the jurisdiction for all gathering pipelines should be under the
sole jurisdiction of DOT, as these gathering pipelines would include
both pipelines transporting product from a production facility as well
as pipelines gathering production from satellite storage locations to a
central storage location. (101, 108, 150)

RESPONSE

Generally support. The Agency has consulted with DOT in the development
of this rulemaking, and will continue these consultations to address the
EPA/DOT jurisdictional issues.  EPA and DOT will revise the 2000
guidance memorandum, acknowledging that it has not provided a clear
basis for implementing the 1971 MOU or delineating EPA and DOT
jurisdiction. Both EPA and DOT will continue to work cooperatively to
minimize, where appropriate, dual jurisdiction.

Codify exemption for dry gas.  With respect to a ‘dry gas production
facility,’ the Agency maintains its position that a dry gas production
facility is not an oil production, oil recovery, or oil recycling
facility, as described in the clarification published May 25, 2004 in
the Federal Register notice (69 FR 29728) regarding the applicability of
the wastewater treatment exemption to dry gas facilities. In that
notice, EPA stated, “A dry gas production facility is a facility that
produces natural gas from a well (or wells) from which it does not also
produce condensate or crude oil that can be drawn off the tanks,
containers or other production equipment at the facility.” As
discussed in the preamble to the July 2002 rulemaking, ‘the goal of an
oil production, oil recovery, or oil recycling facility is to maximize
the production or recovery of oil. * * *’ 67 FR 47068. A dry gas
facility does not meet this description.” As such, dry gas facilities
as defined here are not subject to the SPCC requirements and therefore,
do not need to be addressed in the EPA/DOT MOU.

Secondary containment. EPA disagrees with the commenter regarding a
perceived expansion of the Agency jurisdiction.  Today’s action and
the changes referenced in the comment are associated with the general
secondary containment provisions and not the Appendix A MOU or other
part of the rule dealing with the scope of EPA’s jurisdiction at
non-transportation related facilities.

Primary function of facility. As part of EPA and DOT’s effort to
revise their 2000 guidance memorandum, the agencies are evaluating the
viability of a “primary function” approach as described by
commenters. EPA will continue work to improve guidance for pipeline
operators and will communicate the results of discussions in a manner
that affords public comment.

Inter- and intra-facility gathering lines. EPA disagrees with commenters
that all gathering lines should be under the jurisdiction of DOT. EPA
will continue to regulate only those intra-facility gathering lines
within a production facility not subject to DOT regulation. EPA is also
finalizing an exemption to address the concern of commenters regarding
dual regulatory requirements for these piping systems.

XIII. Manmade Structure

Issue: EPA requested comment on whether further clarification regarding
the use of building structures to meet the SPCC secondary containment
requirements is necessary, and whether further clarification regarding
requirements for integrity testing of containers located indoors, or a
regulatory amendment, is necessary.

COMMENT

General support. Several commenters supported the clarifications
regarding the consideration of manmade features to meet the secondary
containment requirements and integrity testing requirements of the rule.

Consistency across industries.  One commenter expressed concern that EPA
has “looked the other way” regarding farmers who kept active diesel
tanks without secondary containment. The commenter argued that EPA
should therefore consider all oil storage facilities the same way
(including those that store tanks within manmade structures). (31)

“Locationally exempt facilities.”  One commenter requested
additional discussion and clarification on locationally exempt
facilities—that is, facilities that may not be subject to SPCC
regulations because of their low likelihood of discharge to navigable
waters. The commenter recommended allowing consideration of manmade
features that predate construction of an otherwise regulated facility to
be considered for locational exemption. (82)

Exempt buildings with oil-filled supporting equipment.  Two commenters
recommended exempting buildings that store, for instance, hydraulic oil
for an elevator, or an emergency generator with day tank. “Multi-story
office buildings with elevator(s) typically have hydraulic oil capacity
in excess of 1,320 gallons,” (111) and commenters do not believe it is
EPA’s intent to require office buildings with elevators to develop and
implement SPCC Plans. (75, 111) Similarly, one commenter requested that
“certain oil storage units located wholly within buildings, where such
buildings themselves effectively serve to prevent leaks or spills from
reaching navigable waters, should not be considered regulated unit
subject to SPCC requirements.” (114)

Exempt machining coolant systems.  One commenter suggested that EPA also
exempt machining coolant systems because the systems are entirely
indoors, represent no risk of discharge to the outdoor environment and
contain little or virtually no oil. (88)

Oil storage in a building compliant with NFPA 30 should be outside the
scope of SPCC requirements.  The commenter believes that “any oil
storage (or any product for that matter) in such well-designed buildings
should not be considered merely a compliance convenience (as EPA
asserts), but rather should factor directly on the fundamental
applicability of SPCC to the building and EPA's regulatory prerequisite
of reasonable expectation of discharge. Because storage in such a
building is not reasonably expected to discharge, such storage should be
outside the scope of the SPCC and OPA applicability requirements.”
(88)

Clarify rule text accordingly. One commenter recommended clarifying text
§112.1(d)(1)(i) to “allow consideration of such man-made features
when conducting a reasonable expectation to discharge determination.
Providing clarifying text to the citation will eliminate any confusion
on the use of certain man-made features in the ‘reasonable expectation
to discharge’ determination.” (64)

RESPONSE

General support. EPA agrees with commenters who provided support for the
clarifications regarding the consideration of manmade features to meet
the secondary containment requirements and integrity testing
requirements of the rule. EPA is maintaining these clarifications.

Consistency across industries.  EPA disagrees with the commenter that
suggested that EPA does not consider all oil storage facilities the same
way, including those facilities that have oil storage containers inside
buildings. All onshore oil storage facilities are subject to the general
requirements under §112.7 and the requirements under Subpart B, §112.8
for onshore facilities (excluding production facilities) or the Subpart
C requirements for animal fats and vegetable oils in §112.12.

“Locationally exempt facilities.”  With regard to the commenter who
requested clarification on “locationally exempt facilities,” in
1976, EPA amended the SPCC rule to clarify that when determining
applicability of the rule to a facility, consideration must be based
solely upon of the geographical aspects of the facility, and that
manmade features such as dikes, equipment, or other structures that may
serve to restrain, hinder, contain or otherwise prevent a discharge as
described in §112.1(b) should not be considered. When an owner or
operator determines that the facility could not reasonably be expected
to discharge oil in quantities that may be harmful to navigable waters
or adjoining shorelines based upon geographic and locational aspects of
the facility, then no SPCC Plan is required, such as when a facility is
located in a topographic low area or on flat land far from navigable
waters or adjoining shorelines.

Exempt buildings with oil-filled supporting equipment / Oil storage in a
building compliant with NFPA 30 should be outside the scope of SPCC
requirements.  EPA disagrees with commenters who requested an exemption
for oil-filled equipment or other oil storage containers located inside
buildings. The requirements apply to all containers, unless otherwise
specifically exempted, whether they are located inside or outside a
building.  Thus, EPA does not agree that text be included in
§112.1(d)(1)(i) to allow the consideration of man-made features when
determining a reasonable expectation to discharge because, as discussed
above, the rule requires the facility owner or operator to only consider
geographical and locational aspects of the facility (such as proximity
to navigable waters or adjoining shorelines, land contour, drainage,
etc.) in the determination. However, the SPCC Plan preparer may consider
whether the building design provides adequate secondary containment to
meet the general secondary containment requirements under §112.7 for
oil storage containers located indoors at a regulated facility. The
owner or operator of a facility with oil-filled equipment may also be
eligible for alternative compliance measures under §112.7(k) for
qualified oil-filled operational equipment if it meets the criteria in
§112.7(k)(1).

Exempt machining coolant systems. EPA did not propose to exempt machine
coolant systems as suggested by one commenter. In the proposed rule, EPA
clarified that the owner/operator cannot consider manmade structures in
determining applicability of the SPCC regulation. Once a facility is
subject to the rule, then all oil storage containers located at the
facility (unless otherwise exempt) are regulated regardless of whether
they are located indoors. Furthermore, an exemption would be
inappropriate because buildings often have drainage systems, which would
divert spills from the machining coolant systems, and may also pose a
reasonable expectation of discharge to navigable waters or adjoining
shorelines. However, for oil storage containers located indoors, an
owner/operator can consider the building in determining how to meet SPCC
rule requirements for secondary containment or integrity testing.

As suggested by the commenter, these systems typically contain oil.
Machine coolant systems that have an oil storage capacity greater than
55 gallons and are located at an otherwise SPCC-regulated facility are
subject to the SPCC rule and machine coolant systems that do not contain
oil are not regulated. Finally, EPA has provided differentiated
requirements and an alternative compliance option for this equipment to
prevent oil spills. Machine coolant systems are oil-filled equipment and
are therefore not subject to the rule requirements for bulk storage
containers. These systems may also be eligible for alternative
compliance measures under §112.7(k) for qualified oil-filled
operational equipment if it meets the criteria in §112.7(k)(1).

Clarify rule text accordingly. Secondary containment is required as part
of an SPCC Plan and manmade structures such as dikes, berms and
retaining walls are often used to meet this planning requirement. Unless
properly implemented and maintained (as required by the SPCC rule),
manmade structures may fail, thus putting the environment at risk in the
event of a discharge. Therefore, it would defeat the preventative
purpose of the rule to consider these structures (i.e., required by the
regulation) when determining applicability of the rule to a facility.
However, EPA believes that it is appropriate for a facility owner or
operator to consider manmade structures (e.g., dikes, equipment,
buildings or other structures) to determine how to comply with the SPCC
rule. Several commenters supported the clarifications regarding the
consideration of manmade features to meet the secondary containment
requirements and integrity testing requirements of the rule.

XIV.	Underground Emergency Diesel Generator Tanks

at Nuclear Power Stations

Issue: EPA proposed to exempt completely buried oil storage tanks at
facilities regulated by the Nuclear Regulatory Commission (NRC) that are
subject to the safety requirements under the NRC regulations. The
exemption would apply only to completely buried tanks as defined in
§112.2 of the SPCC regulation.

COMMENT

Support proposal

Generally Support.  Many commenters expressed general support for the
proposed amendments in order to avoid dual regulation by EPA and NRC.
(43, 66, 80,99, 100, 110, 121)

Remove reference to 10 CFR part 50.  Some commenters expressed concern
that EPA’s proposed language was too narrow, because NRC’s licensing
program includes plants licensed prior to 10 CFR part 50 (i.e.
grandfathered plants) and  new facilities that are likely to be
regulated under 10 CFR part 52. (66, 80, 89, 100, 121)  One commenter
suggested that EPA remove the specific reference to the text of 10 CFR
part 50, replacing with the general language “in the case of a nuclear
power generation facility, meets the Nuclear Regulatory Commission's
design criteria at 10 CFR part 50, Appendices A and B and operating
safety requirements…” (89) Another commenter suggested that
regulatory language be changed to “…in the case of a nuclear power
generation facility, is part of a system subject to Nuclear Regulatory
Commission regulatory inspection and oversight, except that such a tank
must be marked on the facility diagram as provided in §112.7(a)(3), if
the facility is otherwise subject to this part.” (66)

Exempt below-ground and below-grade vaulted tanks.  Commenters suggested
that below-ground or below-grade tanks situated in vaults should be
exempted. One commenter pointed out that a significant number of EDG
tanks at nuclear power plants are located in below-grade structural
vaults where there is insufficient space for physical inspection of the
tank. In these cases, the tanks would remain within the definition of
“underground storage tank” in the UST rules (40 CFR §280.12) and
thus would qualify for the deferral for an “UST system that is part of
an emergency generator system at nuclear power generation facilities
regulated by the Nuclear Regulatory Commission under 10 CFR Part 50,
Appendix A.” 40 CFR §280.10(c)(3). (43, 66, 80, 121)

Change language to “completely below-grade tank”.  One commenter
suggested that EPA can avoid confusion that would result from use of the
defined term ‘completely buried tank’ by using the descriptive
phrase ‘completely below-grade tank’ in §§112.1(d)(2)(i) and (4)
to identify the exempted tank universe. (121)

Oppose proposal

No comments were submitted on this topic.

RESPONSE

Generally Support.  EPA agrees with commenters who provided support for
the proposed amendment.  However, EPA is expanding the exemption to
include all deferred underground storage tanks at nuclear power
generation facilities that are licensed by the Nuclear Regulatory
Commission (NRC) and that meet the NRC design criteria and quality
assurance criteria so that underground storage tanks located in
below-grade vaults would be included in the exemption.

Remove reference to 10 CFR part 50.  The Agency agrees with those
commenters that suggested this reference is too limiting, because
grandfathered and/or newly constructed underground storage tanks at
nuclear power generation facilities that are licensed by the NRC would
not be eligible for the exemption under the SPCC rule. The language may
also cause future confusion if NRC restructures its requirements or
imposes new ones; the narrow reference may render this amended language
obsolete. Therefore, EPA has modified the final rule language to address
these concerns. This change may also avoid future amendments to the SPCC
rule in the event that NRC modifies the specific regulatory citations
regarding design and/or operating requirements for completely buried
tanks.

Exempt below-ground and below-grade vaulted tanks. EPA agrees with
commenters who argued that the exemption should be extended to
underground storage tanks that are situated in below-ground or
below-grade vaults where there is insufficient space for physical
inspection of the tanks.  In the October 2007 proposal, we explained
that underground storage tanks associated with EDGs that are deferred
from regulation under certain subparts of parts 280 and 281, would be
regulated under SPCC as bulk storage containers, since they are not
subject to all of the technical requirements of part 280 or 281. In
response to stakeholders’ concerns related to possible dual EPA
regulation of these deferred tanks, we proposed to exempt completely
buried tanks associated with EDGs at nuclear power plants from SPCC
requirements on the basis that these tanks would continue to be
regulated under certain parts 280 and 281 (e.g., release response and
corrective action requirements under Subpart F, specifically §§ 280.60
through 280.67) and that NRC operating safety requirements address the