[Federal Register: December 12, 2005 (Volume 70, Number 237)]
[Proposed Rules]
[Page 73523-73552]
[DOCID:fr12de05-27]

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Part III

Environmental Protection Agency

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40 CFR Part 112

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2005-0001; FRL-8007-2]
RIN 2050-AG23

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
today proposing to amend the Spill Prevention, Control, and
Countermeasure (SPCC) Plan requirements to reduce the regulatory burden
for certain facilities by: Providing an option that would allow owners/
operators of facilities that store less than 10,000 gallons of oil and
meet other qualifying criteria to self-certify their SPCC Plans, in
lieu of review and certification by a Professional Engineer; providing
an alternative to the secondary containment requirement, without
requiring a determination of impracticability, for facilities that have
certain types of oil-filled equipment; defining and providing an
exemption for motive power containers; and exempting airport mobile
refuelers from the specifically sized secondary containment
requirements for bulk storage containers. In addition, the Agency also
proposes to remove and reserve certain SPCC requirements for animal
fats and vegetable oils and proposes a separate extension of the
compliance dates for farms. In proposing these changes, EPA is
significantly reducing the burden imposed on the regulated community in
complying with the SPCC requirements, while maintaining protection of
human health and the environment. Further, the Agency requests comments
on the potential scope of future rulemaking. In a separate document in
today's Federal Register, the Agency is proposing to extend the
compliance dates for all facilities.

DATES: Comments must be received on or before February 10, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2005-0001 by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. Follow the

on-line instructions for submitting comments.
     Mail: The mailing address of the docket for this
rulemaking is EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-
2005-0001, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery: Such deliveries are only accepted during
the Docket's normal hours of operation, and special arrangements should
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2005-0001. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov. The

http://www.regulations.gov Web site is an ``anonymous access'' system, which

means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of the comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. Comments and suggestions regarding the scope of any future
rulemaking should be clearly differentiated from comments specific to
today's proposal (e.g., label Suggestions for Future Rulemaking and
Comments on Current Proposal).
    Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by a statute. Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the EPA

Docket, EPA/DC, EPA West, Room B102, 1303 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is<PHONE_NUMBER>, and the telephone
number to make an appointment to view the docket is<PHONE_NUMBER>.

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

SUPPLEMENTARY INFORMATION: This proposed rule would amend the
requirements for Spill Prevention, Control, and Countermeasure (SPCC)
Plans in 40 CFR part 112. First, the proposal would provide an
alternative option for the owner/operator of a facility that meets
specific qualifying criteria (hereafter referred to as a ``qualified
facility'') to self-certify that the facility's SPCC Plan complies with
40 CFR part 112, in lieu of the requirement for a Professional
Engineer's (PE) review and certification. Second, the proposal would
provide an alternative option for the owner/operator of a facility with
oil-filled operational equipment that meets specific qualifying
criterion (hereafter referred to as ``qualified oil-filled operational
equipment'') to establish and document an inspection or monitoring
program, prepare a contingency plan, and provide a written commitment
of manpower, equipment and materials in lieu of secondary containment
for qualified oil-filled operational equipment without being required
to make an individual impracticability determination. Third, the
proposal would define and provide an exemption for motive power
containers. Fourth, the proposal would exempt airport mobile refuelers
from specifically sized secondary containment requirements for bulk
storage containers. Fifth, the proposal removes and reserves certain
SPCC requirements for animal fats and vegetable oils. Finally, the
proposal provides a separate extension of the compliance dates for
farms and, in a separate notice in today's Federal Register, the Agency
is proposing to extend the compliance dates for all facilities. The
contents of this preamble are:

I. General Information

II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. Today's Action
    A. Qualified Facilities
    1. Eligibility Criteria
    a. Total Facility Oil Storage Capacity Threshold
    b. Reportable Discharge History
    2. Proposed Requirements for Qualified Facilities
    a. Self-Certification and Plan Amendments
    b. Environmental Equivalence and Impracticability Determinations
    c. SPCC Plan Exceptions
    3. Alternative Options Considered
    a. Extension/Suspension Options
    b. Multi-tiered Structure
    c. One-time Notification
    B. Qualified Oil-filled Operational Equipment
    1. Proposed Oil-Filled Operational Equipment Definition
    2. Eligibility Criteria--Reportable Discharge History
    3. Proposed Requirements for Qualified Oil-Filled Operational
Equipment In Lieu of Secondary Containment
    a. Contingency Plans and a Written Commitment of Manpower,
Equipment and Materials
    b. Inspections or Monitoring Program
    4. Alternative Options Considered
    a. Capacity Threshold Qualifier
    b. Multi-Tiered Structure
    c. Extension/Suspension Options
    5. Qualified Facilities and Qualified Oil-Filled Operational
Equipment Overlap
    C. Motive Power
    1. Definition of Motive Power
    2. Proposed Exemption
    3. Alternative Options Considered
    a. Equipment-Based Motive Power Exemption
    b. Threshold-Based Motive Power Exemption
    c. Exclusion From Storage Capacity Calculation
    D. Airport Mobile Refuelers
    1. Definition of Airport Mobile Refueler
    2. Proposed Amended Requirements
    E. Animal Fats and Vegetable Oils
VI. Proposed Extension of Compliance Dates for Farms
    A. Eligibility Criteria
    B. Proposed Compliance Date Extension for Farms
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children From
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

    To reduce regulatory burden for qualified facilities and to address
several concerns involving oil-filled operational equipment, motive
power containers, airport mobile refuelers, and provisions specific to
animal fats and vegetable oils, EPA proposes to amend the SPCC Plan
requirements in 40 CFR part 112. The Agency also proposes a separate
extension of the compliance dates for farms. Specifically:
     EPA proposes an alternative option for the owner/operator
of a qualified facility to self-certify his/her SPCC Plan, prepared in
accordance with 40 CFR part 112, in lieu of review and certification by
a Professional Engineer (PE). A qualified facility is a facility
subject to the SPCC requirements that (1) has a maximum total facility
oil storage capacity of 10,000 gallons or less; and (2) had no
reportable oil discharge as described in Sec.  112.1(b) during the ten
years prior to self-certification or, since becoming subject to the
SPCC requirements if the facility has been in operation for less than
ten years. Under this proposed approach, facility owners/operators of
qualified facilities choosing to self-certify their SPCC Plans may not
deviate from any requirement of the SPCC rule under Sec.  112.7(a)(2)
(with two exceptions) and may not make impracticability determinations
in their SPCC Plans as described under Sec.  112.7(d). The two
exceptions are that facility owners/operators of qualified facilities
choosing to self-certify their SPCC Plans would have flexibility with
respect to the security requirements and container integrity testing.
     EPA proposes a definition for oil-filled operational
equipment and proposes that owners and operators of facilities where
qualified oil-filled operational equipment is located have the
alternative of preparing an oil spill contingency plan and a written
commitment of manpower, equipment and materials, without having to
determine that secondary containment is impracticable on an individual
equipment basis (make an individual impracticability determination as
required in Sec.  112.7(d)); and establish and document an inspection
or monitoring program for this equipment to detect equipment failure
and/or a discharge in lieu of providing secondary containment for
qualified oil-filled operational equipment. Today's proposal would
eliminate the current requirement for an individual impracticability
determination for oil-filled operational equipment at a facility that
has had no discharges as described in Sec.  112.1(b) from any oil-
filled operational equipment during the ten years prior to the Plan
certification date or, since becoming subject to the SPCC requirements
if the facility has been in operation for less than ten years.
     EPA proposes to exempt from the SPCC rule certain motive
power containers. Motive power containers are onboard bulk storage
containers used solely to power the movement of a motor vehicle (i.e.,
fuel tanks), or ancillary onboard oil-filled operational equipment
(i.e., hydraulics and lubrication systems) used solely to facilitate
its operation. This exemption would not apply to transfers of fuel or
other oil into motive power containers at an otherwise regulated
facility. This exemption would not apply to a bulk storage container
mounted on a vehicle for any purpose other than powering the vehicle
itself, for example, a tanker truck or mobile refueler. Additionally,
this exemption would not apply to oil drilling or workover equipment,
including rigs.
     EPA proposes to exempt airport mobile refuelers from the
specifically sized secondary containment requirements for bulk storage
containers under Sec.  112.8(c)(2) and (11) of the SPCC rule. Airport
mobile refuelers are vehicles found at airports that have onboard bulk
storage containers designed for, or used to, store and transport fuel
for transfer into or from an aircraft or ground service equipment. The
remaining provisions of Sec.  112.8(c) and the general secondary
containment requirements of Sec.  112.7(c) would still apply to the
onboard bulk storage containers on airport mobile refuelers and the
transfers associated with this equipment.
     The Agency proposes to amend the requirements for animal
fats and vegetable oils in Subpart C of Part 112 by removing Sec.
112.13 (requirements for onshore oil production facilities), Sec.
112.14 (requirements for onshore oil drilling and workover facilities),
and Sec.  112.15 (requirements for offshore oil drilling, production,
or workover facilities) because these sections do not apply to
facilities that handle, store, or transport animal fats and vegetable
oils.
     EPA proposes to extend the compliance dates for farms,
while the Agency considers whether the unique nature of this sector
warrants differentiated requirements under the SPCC rule.
     Under the current regulations in Sec.  112.3(a), (b) and
(c), a facility that was in operation on or before August 16, 2002 must
make any necessary amendments to its SPCC Plan by February 17, 2006,
and fully implement

its SPCC Plan by August 18, 2006. A facility that came into operation
after August 16, 2002 but before August 18, 2006, must prepare and
fully implement an SPCC Plan on or before August 18, 2006. The owner or
operator of an onshore or offshore mobile facility must maintain their
Plan, but must amend and implement it, if necessary to ensure
compliance with this part, on or before August 18, 2006. In a separate
notice in today's Federal Register, the Agency is proposing to extend
the compliance dates for all facilities to October 31, 2007. Reviewers
should refer to that notice for a complete discussion of the proposed
extension. Regarding modifications of the SPCC regulations, to the
extent practicable, EPA will establish deadlines for compliance
implementation that commence one year after promulgating the regulatory
revisions.

         II. Entities Potentially Affected by This Proposed Rule
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            Industry category                        NAICS code
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Crop and Animal Production...............                        111-112
Crude Petroleum and Natural Gas                                      211
 Extraction..............................
Coal Mining, Non-Metallic Mineral Mining         2121/2123/213114/213116
 and Quarrying...........................
Electric Power Generation, Transmission,                            2211
 and Distribution........................
Heavy Construction.......................                            234
Petroleum and Coal Products Manufacturing                            324
Other Manufacturing (including animal                              31-33
 fats and vegetable oil manufacturing)...
Petroleum Bulk Stations and Terminals....                          42271
Automotive Rental and Leasing............                           5321
Gasoline Service Stations................                            447
Fuel Oil Dealers.........................                           4543
Waste Management and Remediation.........                            562
Other Commercial Facilities (including               44-45, 51-55, 56172
 Retail Stores, Apartment Buildings,
 Wholesalers and Janitorial Services)....
Transportation (including Pipelines and       482-486/488112-48819/4883/
 Airports), Warehousing, and Marinas.....            48849/492-493/71393
Elementary and Secondary Schools,                                    611
 Colleges................................
Federal, State, Local Government and                                  92
 Military Installations..................
Hospitals/Nursing and Residential Care                           621-623
 Facilities..............................
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    The list of potentially affected entities in the above table may
not be exhaustive. The Agency's aim is to provide a guide for readers
regarding those entities that potentially could be affected by this
action. However, this action may affect other entities not listed in
this table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority and Delegation of Authority

    Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33
U.S.C. 1321(j)(1)(C), requires the President to issue regulations
establishing procedures, methods, equipment, and other requirements to
prevent discharges of oil from vessels and facilities and to contain
such discharges. The President delegated the authority to regulate non-
transportation-related onshore facilities to the EPA in Executive Order
11548 (35 FR 11677, July 22, 1970), which has been replaced by
Executive Order 12777 (56 FR 54757, October 22, 1991). A Memorandum of
Understanding (MOU) between the U.S. Department of Transportation (DOT)
and EPA (36 FR 24080, November 24, 1971) established the definitions of
transportation- and non-transportation-related facilities. An MOU among
EPA, the U.S. Department of Interior (DOI), and DOT, effective February
3, 1994, has redelegated the responsibility to regulate certain
offshore facilities from DOI to EPA.

IV. Background

    On July 17, 2002, EPA published a final rule amending the Oil
Pollution Prevention regulation (40 CFR part 112) promulgated under the
authority of section 311(j) of the CWA. This revised rule included
requirements for SPCC Plans and for Facility Response Plans (FRPs). It
also included new subparts outlining the requirements for various
classes of oil; revised the applicability of the regulation; amended
the requirements for completing SPCC Plans; and made other
modifications (67 FR 47042). The revised rule became effective on
August 16, 2002. After publication of this rule, several members of the
regulated community filed legal challenges to certain aspects of the
rule. Most of the issues raised in the litigation have been settled,
following which EPA published clarifications in the Federal Register to
several aspects of the revised rule (69 FR 29728, May 25, 2004).\1\
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    \1\ American Petroleum Institute v. Leavitt, No. 1:102CV02247
PLF and consolidated cases (D.D.C. filed Nov. 14, 2002). The
remaining issue to be decided concerns the definition of ``navigable
waters'' in Sec.  112.1.
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    EPA has extended the dates for revising and implementing revised
SPCC Plans in 40 CFR 112.3(a) and (b) several times, and has extended
the compliance date for 40 CFR 112.3(c) (see 69 FR 48794 (August 11,
2004) for further discussion on the extensions). This action was taken
by EPA in order to provide the regulated community with sufficient time
to comply with the 2002 revised rule and to allow the regulated
community time to understand the 2004 clarifications and be able to
incorporate them in their updated SPCC Plans. The current deadline for
the preparation and certification of revised SPCC Plans for facilities
maintaining their current SPCC Plan is February 17, 2006. Plans must be
implemented by August 18, 2006. Facilities that became subject to the
SPCC rule after August 16, 2002 are currently required to develop and
implement their Plans by August 18, 2006.
    On September 20, 2004, EPA published two Notices of Data
Availability (NODAs). The first NODA made available and solicited
comments on submissions to EPA suggesting more focused requirements for
facilities subject to the SPCC rule that handle oil below a certain
threshold amount, referred to as ``certain facilities'' (69 FR 56182).
Streamlined approaches for facilities with oil capacities below a
certain threshold were discussed in the NODA documents. The second NODA
made available and solicited comments

on whether alternate regulatory requirements would be appropriate for
facilities with oil-filled and process equipment (69 FR 56184). EPA has
reviewed the public comments and data submitted in response to the
NODAs in developing today's proposal.
    In addition, the Agency considered regulatory relief for airport
mobile refuelers in response to concerns raised by the aviation sector.
Airport mobile refuelers are vehicles that are used on an airport
facility to refuel aircraft and ground service equipment (such as belt
loaders, tractors, luggage transport vehicles, deicing equipment, and
lifts) used at airports. The onboard bulk storage containers on airport
mobile refuelers that are used to transport and transfer fuel into or
from aircraft and ground service equipment are considered mobile or
portable bulk storage containers under the SPCC rule because they are
used to store oil prior to further distribution and use. As such, they
are subject to all applicable SPCC rule provisions, including the sized
secondary containment provisions of Sec.  112.8(c)(2) and (11). These
provisions require the secondary containment, such as a dike or
catchment basin, to be sufficient to contain the capacity of the
largest single compartment or container and include sufficient
freeboard to contain precipitation.
    Regulated community members in the aviation sector have expressed
concern that requiring such sized secondary containment for airport
mobile refuelers is not practicable for safety and security reasons.
(Included in the Docket for today's proposal are the letters that have
been submitted to EPA regarding this matter.) Specifically, it has been
argued that to require these refuelers to park in specially designed
secondary containment areas located within an airport's aircraft
operations area could create a safety and security hazard because it
would require grouping of the vehicles or place impediments in the
operations area. Additionally, requiring mobile refuelers to return to
containment areas located within the airport's tank farm between
refueling operations may increase the risk of accidents (and therefore
accidental oil discharge), as the vehicles would travel with increased
frequency through the busy aircraft operations area. EPA acknowledges
these concerns and seeks to provide relief for airport mobile refuelers
from the specifically sized secondary containment requirements for bulk
storage containers, while protecting the environment from refueler
spills, particularly those associated with transfers. Consequently,
these refuelers remain subject to the other bulk storage container
requirements under Sec.  112.8(c) and the general secondary containment
requirements under Sec.  112.7(c) which also applies to the transfers
of oil associated with airport mobile refuelers.
    In contrast to a mobile or portable bulk storage container such as
a mobile refueler, a ``motive power container'' is an integral part of
a motor vehicle (including aircraft), providing fuel for propulsion or
providing some other operational function, such as lubrication of
moving parts or for operation of onboard hydraulic equipment. Motive
power containers on vehicles used solely at non-transportation related
facilities fall under EPA jurisdiction and are subject to the SPCC
regulation. Examples of motive power vehicles include, but are not
limited to: buses; recreational vehicles; some sport utility vehicles;
construction vehicles; aircraft; farm equipment; and earthmoving
equipment (e.g., such as at a drilling or workover facility). Examples
of facilities or locations that may be covered by the SPCC requirements
solely because of the presence of motive power containers include, but
are not limited to, heavy equipment dealers, commercial truck dealers,
and parking lots.
    While the concept of ``motive power'' is not directly addressed in
the SPCC regulation, such vehicle fuel containers may fall under the
definition of ``bulk storage container'' in Sec.  112.2, while the
onboard lubrication system may be considered oil-filled operational
equipment. Therefore, motive power containers which store oil used for
the propulsion of a vehicle are subject to all the requirements under
Sec.  112.8(c) if they have a capacity of 55 gallons or more. These
requirements include specifically sized secondary containment for bulk
storage containers, integrity testing (visual plus non-destructive
testing), and a requirement to engineer containers to avoid discharges
(such as an overfill alarm). Additionally, any oil-filled operational
equipment with a capacity of 55 gallons or more mounted on a vehicle
are subject to the general secondary containment requirements listed in
Sec.  112.7(c).
    EPA recognizes that, in most cases, the requirements of Sec.
112.8(c), including specifically sized secondary containment and the
general secondary containment requirements under Sec.  112.7(c), are
not practicable for motive power containers. It has never been EPA's
intent to regulate motive power containers. Therefore, EPA is proposing
to exempt such motive power containers from the SPCC regulation.
    In the July 17, 2002 final SPCC rule, the Agency promulgated
general requirements for SPCC Plans for all facilities and all types of
oil in Sec.  112.7. In response to the Edible Oil Regulatory Reform Act
(EORRA), EPA promulgated separate subparts in part 112 for facilities
storing or using various classes of oil, but the requirements in each
subpart are the same. EORRA required most Federal agencies to
differentiate between and establish separate classes for various types
of oil, specifically, between animal fats and oils and greases, and
fish and marine mammal oils and oils of vegetable origin, including
oils from seeds, nuts, and kernels; and other oils and greases,
including petroleum. The result of this approach was that the new
Subpart C included requirements for animal fat and vegetable oil (AFVO)
facilities--onshore facilities (excluding production facilities) (Sec.
112.12), onshore oil production facilities, (Sec.  112.14) onshore oil
drilling and workover facilities (Sec.  112.13), and requirements for
offshore oil drilling, production, or workover facilities (Sec.
112.15). While the Agency recognized that some of these requirements
are not applicable to facilities that handle, store or transport AFVO,
these sections were promulgated because the Agency had not proposed
differentiated SPCC requirements for public notice and comment. As a
result, the current requirements for petroleum oils were also applied
to animal fats and vegetable oils. EPA is today proposing to remove
those sections from the SPCC requirements that are not applicable or
appropriate to animal fats and vegetable oils.
    Additionally, EPA has issued the SPCC Guidance for Regional
Inspectors. The guidance document is intended to assist regional
inspectors in reviewing a facility's implementation of the SPCC rule.
The document is designed to facilitate an understanding of the rule's
applicability, to help clarify the role of the inspector in the review
and evaluation of the performance-based SPCC requirements, and to
provide a consistent national policy on several SPCC-related issues.
The guidance is also available to both the owners and operators of
facilities that may be subject to the requirements of the SPCC rule and
to the general public on the Agency's website at http://www.epa.gov/oilspill.

This guidance is a living document and will be revised, as necessary,
to reflect any relevant future regulatory amendments in a timely
manner. Accordingly, EPA welcomes comments from the regulated community
and the public on the guidance document within 60 days of this NPRM, as
described on the website.

The guidance document is a separate effort from this rulemaking. EPA
does not plan to address comments on the guidance document when taking
final action on this rule. Comments on the guidance document should not
be submitted to the docket for this rulemaking. Refer to the website
http://www.epa.gov/oilspill for the text of the guidance document and for

instructions for providing suggestions on the guidance document. The
EPA urges readers to review the guidance document for assistance in
understanding the SPCC rule and today's proposal. Pursuant to today's
proposal, EPA anticipates issuing an updated guidance document in 2006
to reflect finalization of this rulemaking such that inspectors and the
regulated community have accurate and timely information on SPCC
requirements.
    Although the scope of today's proposal was originally intended to
address only certain targeted areas of the SPCC requirements, the
Agency is including several additional proposed modifications to
address a number of issues and concerns raised by the regulated
community. As highlighted in the EPA Regulatory Agenda and the 2005 OMB
report on ``Regulatory Reform of the U.S. Manufacturing Sector,'' there
are other issues under consideration for possible future rulemaking
action. The modifications proposed today do not preclude a future
rulemaking on other issues not addressed in today's proposal. Rather,
EPA is working to identify additional areas where regulatory reform may
be appropriate. For these additional areas, the Agency expects to issue
a proposed rule in 2007. Additionally, EPA in conjunction with DOE will
be conducting an energy impact analysis of the SPCC requirements, and
will consider the results of this analysis to inform the Agency's
deliberations over any future rulemaking. EPA is interested in whether
there are other aspects of the SPCC regulatory requirements, beyond
those that are addressed in today's proposal, that should be the focus
of future rulemaking. The Agency also requests that commenters who
provide suggestions regarding future rulemaking clearly differentiate
them from comments submitted on today's proposal (e.g., label
Suggestions for Future Rulemaking and Comments on Current Proposal).
The Agency will not address these suggestions when taking final action
on this proposed rule, but will take them into consideration in future
rulemaking decisions.

V. Today's Action

A. Qualified Facilities

    EPA proposes to amend the Oil Pollution Prevention regulation (40
CFR part 112) to provide an option to allow the owner or operator of a
facility that meets the qualifying criteria (hereafter referred to as a
``qualified facility'') to self-certify the facility's SPCC Plan in
lieu of certification by a licensed professional engineer (PE). EPA
proposes to amend Sec.  112.3 to describe the SPCC eligibility criteria
that a regulated facility must meet in order to be considered a
qualified facility. A qualified facility would be a facility subject to
the SPCC rule that (1) has an aggregate facility oil storage capacity
of 10,000 gallons or less; and (2) had no discharges as described in
Sec.  112.1(b) during the ten years prior to self-certification or
since becoming subject to the SPCC requirements if less than ten years.
Facilities that have been subject to SPCC for less than ten years,
including new facilities, would need to demonstrate no discharges as
described in Sec.  112.1(b) only for the period of time they have been
subject to the SPCC rule. Self-certified Plans would not be allowed to
include ``environmentally equivalent'' alternatives to required Plan
elements as provided in Sec.  112.7(a)(2) or to claim impracticability
with respect to any secondary containment requirements as provided in
Sec.  112.7(d). The two exceptions for which the owner and operator
would still be allowed to use environmentally equivalent measures are
with respect to security and integrity testing. Facilities with
complicated operations and lower capacities may find that the current
rule offers a more cost-effective method of achieving compliance than
the proposed option. Therefore, a qualified facility could choose to
follow the current SPCC requirements (including the PE certification)
to take advantage of the flexibility offered by PE-certified
impracticality determinations and environmentally equivalent measures.
1. Eligibility Criteria
a. Total Facility Oil Storage Capacity Threshold
    EPA proposes to limit qualified facilities to a total maximum
storage capacity of 10,000 gallons of oil. EPA considered many
different factors before selecting this storage capacity. First, EPA
has established 10,000 gallons as a threshold in several other rules
relating to oil discharges. This threshold quantity is used in the
National Oil and Hazardous Substances Pollution Contingency Plan
(National Contingency Plan or NCP) to classify oil discharges based on
the location and size of the discharge (see 40 CFR 300.5). The NCP
refers to discharges greater than 10,000 gallons to inland waters as
``major,'' while other thresholds are used to classify ``minor'' and
``medium'' discharges. The classes are provided as guidance to the On-
Scene Coordinator (OSC), and serve as criteria for the actions
delineated in the NCP. It is important to note, however, that the NCP
quantitative thresholds are only provided to help the OSC determine
response action, and do not imply associated degrees of hazard to the
public health or welfare, or environmental damage. The NCP size classes
nevertheless define an oil discharge to inland waters exceeding 10,000
gallons as a major discharge.
    A discharge of 10,000 gallons or more is also one of the factors
used in identifying facilities that must prepare and submit a Facility
Response Plan (FRP) under Sec.  112.20(f)(1). The FRP rule applies to
facilities that could reasonably be expected to cause substantial harm
to the environment due to a discharge to waters of the U.S. and
adjoining shorelines.
    Second, state regulations also provide support for the use of a
10,000-gallon threshold. A number of states differentiate regulatory
requirements based on a facility's total storage capacity, with some
states specifying a 10,000-gallon threshold. For example, Maryland
requires that all commercial facilities storing more than 10,000
gallons of oil obtain an oil operations permit; Minnesota requires
facilities storing between 10,000 and 1,000,000 gallons of oil to
prepare a prevention and response plan; and Oregon places special
requirements on marine facilities storing more than 10,000 gallons of
oil. The 10,000-gallon threshold is also frequently used in setting
requirements for certain storage tanks. For example, New York requires
a ``secondary containment system'' around all aboveground storage tanks
(ASTs) with a storage capacity greater than or equal to 10,000 gallons,
and Wisconsin caps the size of ASTs that can be used for fueling
vehicles at 10,000 gallons.
    Finally, 10,000 gallons is a common storage tank size, and EPA
believes that setting a maximum capacity at 10,000 gallons would
address the concerns that smaller facilities have raised. In fact, the
Small Business Administration Office of Advocacy suggested that a
10,000-gallon threshold is a reasonable volume to address the concerns
of facilities with relatively smaller volumes of oil. The Agency seeks
comments on whether this

threshold appropriately addresses the concerns of facilities with
relatively smaller volumes of oil, while maintaining the environmental
protection intended by the regulation. If commenters suggest
alternative volume thresholds, it will be important for the comments to
also include a justification for such alternative volume thresholds in
order for the Agency to adequately consider the comments submitted.
This data would be useful in final rule deliberations.
    While EPA recognizes that a discharge of less than 10,000 gallons
can be harmful, regardless of how the NCP defines ``major discharge,''
EPA believes that it is reasonable to allow facilities with a capacity
of no more than 10,000 gallons to prepare and implement a Plan that
complies with the SPCC rule requirements and provides adequate
protection against discharges without the involvement of a PE. These
facilities generally have less complex operations and petroleum system
configurations, and smaller oil storage capacities than other types of
facilities subject to the SPCC requirements. Thus, the Agency believes
that a responsible owner or operator at these facilities should be able
to comply with the SPCC rule provisions without review and
certification of the SPCC Plan by a PE, and that simplifying the rule
will result in greater environmental protection by improving
compliance.
b. Reportable Discharge History
    EPA proposes that a qualified facility subject to the SPCC
requirements must have no reportable oil discharges as described in
Sec.  112.1(b) during the ten years prior to self-certification or
since becoming subject to the SPCC requirements, whichever is less.
Facilities that have been subject to SPCC for less than ten years,
including new facilities, would need to demonstrate no discharges as
described in Sec.  112.1(b) only for the period they have been subject
to SPCC. This criterion is based on a proposal regarding oil-filled
electrical equipment submitted by the Utility Solid Waste Activities
Group (USWAG), as described in the documents supplementing the
September 20, 2004 NODA at 69 FR 56184. In its proposal, USWAG
recognized that facilities that pose a risk, in terms of oil discharges
in quantities that are harmful (reportable under 40 CFR part 110),
should not be granted relief. USWAG specifically proposed a ten-year
spill history as a potential criterion to be eligible for relief. In
general, NODA commenters expressed strong support for the USWAG
proposal. As in the case of oil-filled operational equipment, the
Agency believes that a clean spill history is a suitable criterion for
demonstrating eligibility for Plan self-certification, while still
effectively maintaining good prevention practices.
    Part 110 defines a discharge of oil in such quantities that may be
harmful to the public health, welfare, or the environment of the United
States as a discharge of oil that violates applicable water quality
standards; a discharge of oil that causes a film or sheen upon the
surface of the water or on adjoining shorelines; or a discharge of oil
that causes a sludge or emulsion to be deposited beneath the surface of
the water or adjoining shorelines (40 CFR 110.3). The Agency refers to
such discharges in Sec.  112.1(b) of the rule. Any person in charge of
a facility must report any such discharge of oil from the facility to
the National Response Center (NRC) at 1-800-424-8802 immediately. While
EPA recognizes that past release history does not necessarily translate
into a predictor of future performance, the Agency believes that
discharge history is a reasonable indicator of a facility owner or
operator's ability to develop an SPCC Plan for the facility without the
involvement of a PE. Hence, EPA proposes to use a facility's discharge
history as a qualification criterion indicating the facility's ability
to effectively develop and implement its SPCC Plan. By establishing a
good oil spill prevention history, a facility qualifies for the self-
certification option offered in this proposal.
    The Agency requests comments on the appropriateness of a reportable
discharge history criterion for determining the qualification of a
facility for the self-certification option, whether it is necessary,
and whether there are other indicators of a facility's effective
implementation of the oil pollution prevention requirements under part
112 that should be considered. In addition, the Agency also
specifically requests comments on the proposed ten-year period for
which facilities would be required to have had no reportable discharges
in order to meet this qualification. The Agency requests that any
alternative criterion or time period suggested include an appropriate
rationale and supporting data to assist the Agency in considering them
for final action. The Agency is also aware that events such as natural
disasters, acts of war or terrorism, sabotage, or other calamities,
beyond the control or planning ability of the facility owner or
operator, may cause a reportable oil discharge. The Agency therefore
requests comments on how to account for such occurrences in the
discharge history criterion.
2. Proposed Requirements for Qualified Facilities
a. Self-Certification and Plan Amendments
    Some in the regulated community, particularly facilities with
relatively smaller volumes of oil, identified the cost of the PE
certification of SPCC Plans as one of its major concerns. This view was
echoed in the comments submitted in response to the NODAs. The Agency
has reviewed the requirements in light of the information provided and
today proposes to allow for self-certification of SPCC Plans by owners
and operators of qualified facilities. With this proposal, the Agency
is responding to those concerns. The elements of the proposed self-
certification requirement are very similar in scope to those of the PE
certification: owners and operators that choose to self-certify their
Plans must certify that they are familiar with the requirements of the
SPCC rule; they have visited and examined the facility; the Plan has
been prepared in accordance with accepted and sound industry practices
and standards; procedures for required inspections and testing have
been established; the Plan is being fully implemented; the facility
meets the qualification criteria set forth under Sec.  112.3(g)(1); the
Plan does not include any environmental equivalence measures as
described in Sec.  112.7(a)(2); the Plan contains no determinations of
impracticability under Sec.  112.7(d); and the Plan and the
individual(s) responsible for implementing the Plan have the full
approval of management and the facility has committed the necessary
resources to fully implement the Plan. The self-certification provision
would be optional. Under today's proposal, an owner or operator of a
qualified facility could choose to comply with the current requirements
under part 112 if that is more suitable to his/her particular
situation.
    Qualified facilities that choose to self-certify would not
automatically lose eligibility for a self-certified Plan and be
required to obtain PE certification in the event of a discharge as
described in Sec.  112.1(b). EPA has the authority to require SPCC Plan
amendments under Sec.  112.4. Section 112.4(a) requires a facility that
has discharged more than 1,000 gallons of oil in a single discharge as
described in 40 CFR part 110, or that has discharged more than 42
gallons of oil in each of two discharges as described in 40 CFR part
110 in any 12-month period, to submit information to

the EPA Regional Administrator (RA) within 60 days of the date of the
discharge. As per Sec.  112.4(d), the RA may require the facility to
amend its SPCC Plan in order to prevent and contain discharges, and the
RA could require a facility to obtain PE-certification of its SPCC
Plan. In addition, a discharge of oil ``in such quantities as may be
harmful'', as defined in 40 CFR 110.3 that does not trigger the
reporting requirements of Sec.  112.4(a) must still be reported to the
National Response Center. Criminal action can be taken against an owner
or operator of a facility if discharges are not reported. EPA also
receives copies of the NRC reports and has the authority under Sec.
112.1(f) to require a facility to prepare and implement an SPCC Plan or
any applicable part of a Plan. The time frame for this review and
amendment process is described in Sec.  112.4. The facility may choose
to appeal the RA's decision to require a Plan amendment under Sec.
112.4. The RA also has authority to require preparation and
implementation of a Plan or applicable part of a Plan under Sec.
112.1(f).
    The Agency requests comment on the appropriateness of using the
existing authorities under the SPCC regulations rather than
establishing a separate process that would automatically require a
facility to obtain PE review and certification of the facility's SPCC
Plan in the event of a reportable discharge. The Agency requests that
any alternative approaches presented include an appropriate rationale
and supporting data in order for the Agency to be able to consider them
for final action.
    Under Sec.  112.5 of the SPCC rule, an owner or operator must
review and amend the SPCC Plan following any change in facility design,
construction, operation or maintenance that materially affects its
potential for a discharge as described in Sec.  112.1(b). A PE must
then certify any and all of these technical amendments to the SPCC
Plan, as currently required under Sec.  112.3(d). Under today's
proposal, technical amendments to SPCC Plans of qualified facilities
would not be required to be certified by a PE. Instead, an owner or
operator would be allowed to self-certify technical amendments to the
Plan under the proposed Sec.  112.3(g)(2) provision, and facilities
with PE-certified Plans which qualify for self-certification would be
allowed to choose to self-certify future technical amendments rather
than hire a professional engineer to certify the technical amendment.
Facilities would be required to document the self-certification of a
technical amendment in the SPCC Plan in accordance with Sec.
112.3(g)(2).
b. Environmental Equivalence and Impracticability Determinations
    Under Sec.  112.7, facility owners and operators have the
flexibility to deviate from specific rule provisions if the Plan states
the reason for nonconformance and if equivalent environmental
protection is provided by some other means of spill prevention, control
or countermeasure. These ``environmentally equivalent'' measures must
be described in the SPCC Plan, including how the equivalent
environmental protection will be achieved based on good engineering
practice. Allowance for ``environmentally equivalent'' deviations is
provided in Sec.  112.7(a)(2) and are only available for requirements
not related to secondary containment, such as fencing and other
security measures, preventing catastrophic tank failure due to brittle
fracture, integrity testing, and liquid level alarms. As part of the
SPCC Plan, any environmentally equivalent measures are also required to
be certified by a PE. The PE's SPCC Plan certification requirements
include consideration of industry standards for the Plan, which would
include equivalent environmental protection measures.
    The SPCC rule also provides flexibility for owners/operators who
determine that the general secondary containment requirements in Sec.
112.7(c) or any of the applicable additional requirements for secondary
containment in subparts B and C are impracticable. Where
impracticability is demonstrated, the SPCC rule allows facility owners
and operators the flexibility to instead develop a contingency plan and
comply with additional requirements as described in Sec.  112.7(d). The
SPCC Plan must explain why containment measures are not practicable,
provide an oil spill contingency plan that follows the provisions of 40
CFR part 109 (Criteria for State, Local and Regional Oil Removal
Contingency Plans), and provide a written commitment of manpower,
equipment, and materials required to expeditiously control and remove
any quantity of oil discharged that may be harmful as described in 40
CFR part 110. A PE must certify any impracticability determinations, as
well as the contingency plan and additional measures implemented in
lieu of containment. Because of the expertise that a PE has in
evaluating whether particular measures provide equivalent environmental
protection and in knowing how to effectively implement such measures,
EPA believes that the flexibility in these performance-based provisions
is best suited to SPCC Plans that are reviewed and certified by a PE.
    Today's proposed amendment would allow qualified facilities to opt
out of the PE certification, but would not allow facilities that take
advantage of this option to include environmentally equivalent measures
in their SPCC Plans pursuant to Sec.  112.7(a)(2). EPA is proposing
this limitation on qualified facilities because EPA believes that in
general, without the advantage of the expertise and knowledge that a PE
brings to the development of an SPCC Plan, deviations based on
environmental equivalence may not be adequate. However, as discussed
below, EPA believes that allowing certain deviations may be appropriate
for at least some owners of qualified facilities, without employing PE
expertise. Therefore, EPA is proposing to allow certain deviations with
respect to facility security and integrity testing of bulk storage
containers.
    EPA is also proposing that qualified facilities be precluded from
claiming impracticability and using contingency planning in lieu of
secondary containment. EPA believes that a PE's knowledge and expertise
is needed for appropriate contingency planning and other measures that
must be put in place in the absence of secondary containment. Thus,
requiring qualified facilities that opt out of PE certification to
adhere to the current set of requirements would maintain the same
standard of environmental protection provided in the existing rule.
    Today's proposal would not preclude a qualified facility from
choosing environmentally equivalent measures or from demonstrating
impracticability with respect to secondary containment requirements,
although the qualified facility would need to comply with the current
SPCC requirements (including the PE certification) in order to utilize
the flexibility offered by PE-developed impracticability determinations
and environmentally equivalent measures. In some circumstances, it may
be more cost effective for a PE to prepare an SPCC Plan which utilizes
environmentally equivalent measures or contingency planning, than for
the owner/operator to comply with the SPCC provisions as outlined in
today's proposal. Also, facilities with unconventional operations which
qualify for this alternative may find that the current rule requirement
for PE certification offers a more cost-effective method of achieving
compliance because it provides additional flexibility through
performance-based provisions. The Agency requests comments on the

appropriateness of restricting the use of impracticability
determinations and environmentally equivalent measures by those
qualified facilities that choose the option of self-certification in
order to ensure an adequate level of environmental protection. Any
alternative approach presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider it
for final action.
c. SPCC Plan Exceptions
    Today's proposal for self-certification of qualified facilities
would restrict the use of alternative environmentally equivalent
measures for qualified facilities that elect to develop their SPCC Plan
without the services of a PE. The Agency's concern is that these
facilities would no longer have a trained professional, with knowledge
to make site-specific equivalence determinations, reviewing and
certifying their Plan. However, EPA recognizes that some of the
prescriptive provisions in the current regulatory requirements may
prove difficult for some qualified facilities to meet.
    While the Agency still believes that generally allowing use of
environmentally equivalent measures in self-certified Plans is not
appropriate, some degree of flexibility in two areas may be appropriate
for qualified facilities. The Agency believes that it can allow
qualified facilities to comply with a streamlined set of basic security
measures and integrity testing requirements. The flexibility in these
proposed exceptions would be analogous to the flexibility provided
under Sec.  112.7(a)(2), which allows for deviations from Sec.
112.7(g) (security) and Sec.  112.8(c)(6) (integrity testing) that
would not be available for these facilities under today's proposal.
    EPA recognizes that there is no one single approach to ensure
proper facility security. For example, the security requirements of
fencing and lighting may not always be appropriate for sites such as a
national, state or local park subject to SPCC, where the site layout
may be too extensive to fence, and where perhaps the lighting of a
solitary field tank would invite, rather than deter, would-be
intruders. Qualified facilities, in lieu of the requirements under
Sec.  112.7(g) of this part, would be allowed to prepare a security
plan that describes how the facility controls access to the oil
handling, processing and storage areas; secures master flow and drain
valves; prevents unauthorized access to starter controls on oil pumps;
secures out-of-service and loading/unloading connections of oil
pipelines; prevents acts of vandalism; and assists in the discovery of
oil discharges. (Note that the security requirements in Sec.  112.7(g)
do not apply to production facilities.)
    Today's proposal would allow a qualified facility to develop a
general security plan that provides equivalent environmental protection
to the requirements in Sec.  112.7(g). The Agency recognizes that these
security provisions can be approached differently by the variety of
facilities that would qualify for self-certification under today's
proposal. It should be noted that this is an option and a qualified
facility in compliance with the current requirements under Sec.
112.7(g) would not be required to develop a security plan under the
proposed Sec.  112.3(g).
    The security plan would be required to address how the owner or
operator will:
     Secure all bulk storage containers, piping and oil-filled
equipment from unauthorized access or acts of vandalism which could
result in a discharge of oil;
     Secure appurtenances (valves and/or drains) in the closed
position to prevent the flow of the contents of the container which
could result in a discharge of oil;
     Secure pump controls in the ``off'' position when not in
use and locate facility pump controls to prevent unauthorized access;
     Secure all loading or unloading transfer connections for
facility piping; and
     Address whether security lighting is appropriate to both
ensuring the discovery of oil discharges, and deter vandalism.
    This security plan would be required to be documented in the
qualified facility's SPCC Plan, and would include a discussion of how
the security plan will be implemented and the required training/
inspections/maintenance for security related equipment and activities.
The Agency recognizes the unique nature of many of the facilities that
would qualify for Plan self-certification, and as such, some
flexibility is appropriate so these facilities can achieve compliance
with the security provisions of the current SPCC rule. The application
of the SPCC security measures is often determined by the facility's
geographical/spatial factors and there is no ``one-size-fits-all''
answer to this serious compliance requirement. For example, facilities
such as farms or national parks may have unique characteristics that
make compliance with the current security measures, such as potentially
fencing the entire facility footprint, inappropriate.
    The Agency is also proposing to provide flexibility in the area of
integrity testing for qualified facilities. The Agency continues to
believe that owners and operators should rely on the appropriate use of
industry standards for the integrity testing requirements. As EPA
stated in its May 2004 letter to the Petroleum Marketers Association of
America (available at http://www.epa.gov/oilspill/pdfs/PMAA_letter.pdf
), the Agency recognizes that in certain site-specific

circumstances, visual inspection may be appropriate and sufficient for
compliance with the integrity testing requirement. The Agency expects
that the selection of particular testing methods to comply with the
integrity testing requirements in the current rule and today's proposal
would be based on industry inspection standards such as the Steel Tank
Institute (STI) SP-001, American Petroleum Institute (API) Standard 653
and API Recommended Practice 12-R1. These industry standards address
the qualifications of the tank inspector and the scope/frequency of the
testing/inspections. Thus, in effect, the Agency is proposing to allow
owners and operators of qualified facilities to consult and rely on
industry standards or qualified container inspectors/testing personnel
to determine the appropriate qualifications for tank inspectors/testing
personnel and the type/frequency of integrity testing required for a
particular container size and configuration. The Agency is proposing to
allow qualified facilities to make this determination in accordance
with industry standards without the need to develop a PE-approved
environmentally equivalent deviation, as is currently required under
Sec.  112.7(a)(2). The Agency believes that allowing this flexibility
for qualified facilities would increase compliance and thus
environmental protection.
    The U.S. Small Business Administration (SBA) Office of Advocacy has
suggested an additional alternative approach for allowing flexibility
for integrity testing of small shop-built tanks that is based on the
current SP001 standard. The current SP001 standard allows periodic
visual inspections for shop-fabricated aboveground storage tanks with a
total capacity of 5,000 gallons, and for which there is spill control
and a continuous release detection method (i.e., Category 1 tanks). SBA
Office of Advocacy has suggested that EPA allow periodic visual
inspections for shop-fabricated aboveground storage tanks at qualified
facilities, in accordance with this SP001 standard, but broaden the
applicability

to include shop-fabricated aboveground storage tanks that have an oil
capacity of between 5,000 and 10,000 gallons. In all other respects,
the SP001 standard would apply. In the SBA's view, due to the presence
of spill control and a continuous release detection method (in
accordance with the SP001 standard), there appears to be little
likelihood for a discharge into navigable waters. The SBA Office of
Advocacy also believes this additional option would make the visual
inspection option available to all, and not a subset of, qualified
facilities and it would benefit those qualified facilities having one
tank above 5,000 gallons.
    EPA is not proposing the SBA additional approach for several
reasons. First the SBA approach would deviate from the industry
standards noted above. Second, the Agency is unaware of a technical
basis to justify this deviation. EPA must justify divergence from
accepted industry standards under the National Technology Transfer and
Advancement Act (NTTAA) (see section VII (I) for a description of
NTTAA). Third, industry standards are periodically updated and revised
to account for changes in technology and to remain consistent with good
engineering practice while this approach would need to be revised
through rulemaking. Finally, EPA believes that by allowing for a
deviation from existing industry standards, compliance would become
more complex as facilities try to understand the circumstances under
which this additional approach can be employed. The Agency welcomes
comment on this additional approach as well as on the proposed approach
for integrity testing for qualified facilities. In addition, once the
modifications proposed today are promulgated, the Agency is willing to
continue to work with industry tank inspection standard setting
organizations to update applicable industry standards. Commenters who
have information on the scope and criteria associated with the industry
visual inspection standards should provide it to the standards setting
organizations and their national experts for consideration.
    At this time, EPA is aware that a number of industry standards are
changing. Nevertheless, the Agency believes that it may be appropriate
to allow the flexibility of alternative integrity testing methods for
these qualified facilities to be consistent with relevant industry
standards. For example, visual inspections may be appropriate for the
lower volume shop-built containers in certain configurations that are
likely to be present at most of these qualified facilities. In the
absence of an environmental equivalency provision that would allow an
alternative integrity testing method for qualified facilities, the
owner or operator would be required to perform visual inspections plus
non-destructive testing on all classes of containers, regardless of
size and configuration. Qualified facilities would have to bear the
cost and burden of conducting non-destructive testing that may not be
necessary under industry standards. The Agency continues to strongly
recommend that facilities, qualified for self-certification or
otherwise, utilize industry standards that are appropriate to their
particular tank configurations in developing and conducting tank
inspection and testing programs and when determining inspector/testing
personnel qualifications.
    The Agency requests comments on whether the proposed requirements
for security and integrity testing for qualified facilities provide
appropriate flexibility, while maintaining environmental protection.
Any alternative approach presented must include an appropriate
rationale and supporting data in order for the Agency to be able to
consider it for final action.
3. Alternative Options Considered
    EPA considered other options for this proposal. These options
included (1) providing an indefinite extension of deadlines or a
suspension of all SPCC requirements; and (2) a multi-tiered structure
of requirements based on a facility's total regulated storage based on
the SBA proposal described in the Certain Facilities NODA published
last year. The Agency also considered requiring qualified facilities to
make a one-time notification to EPA they have been in operation or
subject to the SPCC requirements for a period less than ten years from
the time of Plan certification, and therefore could not show a ten-year
clean spill history as a qualifier. All of these options would apply to
a defined set of ``qualified facilities''.
a. Extension/Suspension Options
    Two additional options were considered: An indefinite compliance
date extension and a suspension of all requirements. Both options would
apply to a defined universe of ``qualified'' SPCC-regulated facilities.
An indefinite extension would provide an undetermined future date for
compliance with the rule. As in past extensions, all facilities that
should have had a Plan as of August 16, 2002 would be required to be in
compliance with the pre-2002 SPCC requirements during the interim
period, including those that could potentially take advantage of
today's qualified facilities proposal. A suspension of requirements for
qualified facilities would provide relief for the affected universe
until EPA takes further action.
    Both of these options would allow EPA more time to decide how to
regulate qualified facilities without delaying compliance for the
entire universe of SPCC-regulated facilities. In contrast, the proposed
option would set forth explicit requirements for qualified facilities
that reduce compliance costs within the current compliance date
schedule. Because these options would only postpone the rule's
requirements for qualified facilities and because the Agency believes
that the modifications proposed today address the major concerns raised
by facilities that store lower volumes of oil, EPA believes it
appropriate to go forward with today's proposal.
b. Multi-Tiered Structure
    A multi-tiered structure option was developed in response to
comments EPA received following publication of the NODA for facilities
that handle oil below a certain threshold amount (69 FR 56182,
September 20, 2004) and is based on a previous analysis prepared for
the SBA Office of Advocacy (Jack Faucett Associates, 2004) (hereafter
``SBA proposal''). This revised regulatory structure would not only
relax requirements for PE certification, but also requirements for
preparing an SPCC Plan itself, although under this approach, the
facility would still be responsible for complying with the substantive
requirements of the SPCC rule. It includes a tiered system based on the
total storage capacity of a facility, as follows:
     Tier I would include facilities that handle between 1,321
and 5,000 gallons of oil (total storage capacity). These facilities
would not need a written SPCC Plan (and therefore no PE certification
would be needed), but would have to adhere to all other SPCC
requirements.
     Tier II would include facilities handling between 5,001
and 10,000 gallons of oil (total storage capacity). These facilities
would be required to have a written SPCC Plan, but the Plan would not
need to be certified by a PE, and a PE site visit would not be
required. Standardized plans could be adopted by a facility conforming
to standard design and operating procedures, without requiring PE
certification.
     Tier III would include the remaining SPCC-regulated
facilities (total storage capacity greater than

10,000 gallons). These facilities would be required to have a written
SPCC Plan certified by a PE, as currently required by the 2002 revised
SPCC rule.
    SBA also suggested that EPA promulgate an interim final rule that
excludes small facilities with storage of less than 10,000 gallons (the
first two tiers of their three-tier approach) from SPCC Plan
requirements, pending completion of the full notice and comment
rulemaking for small facilities to develop the aforementioned tiered
requirements. In order to provide environmental protection in the
interim period, SBA recommended that EPA require: (1) Regular visual
inspections of containers, (2) replacement or retirement of leaking
tanks, and (3) compliance with the part 109 contingency plan
requirements or their equivalent. In this manner (according to SBA),
the EPA could address the reality of the extremely low SPCC compliance
rate among small facilities, and would work toward creating a rule that
small facilities would be likely to comply with. SBA stated that such a
move would enhance, rather than detract from, environmental protection.
    This approach would provide different levels of regulatory relief
based on total oil storage capacity alone, basing degree of risk on the
surrogate measure facility size. Many commenters on the NODA supported
this approach, which would reduce compliance costs by eliminating the
PE certification requirement for facilities under 10,000 gallons.
However, EPA believes that such an approach poses significant
implementation problems both for the regulated community and the
regulators. In particular, the Agency believes that without the owner/
operator developing a Plan or documentation on how the facility will
comply or expects to comply with the SPCC requirements, it will be
challenging for the facility to both meet the substantive requirements
(for example, spill notification, response and preparedness planning,
equipment maintenance, inspection and training, secondary containment),
as well as provide documentation to the regulators that the facility is
in compliance. Additionally, EPA inspectors conducting site visits
would have no written Plan or documentation to assess the facility's
effectiveness in implementing its spill prevention strategy.
    Although EPA received general comments supporting this option on a
conceptual level, neither the information presented in the NODA nor the
comments addressed the practical application of this alternative. The
Agency welcomes comments on this approach, as well as on the proposed
approach, the practical application of the proposal and the rationale
for its adoption.
c. One-Time Notification
    The Agency recognizes that some facilities otherwise qualifying for
owner/operator self-certification will have been in existence for fewer
than ten years and will consequently be unable to demonstrate ten years
without a discharge as described in Sec.  112.1(b). Some of these
facilities will have come into existence after August 16, 2002, and
will not have been subject to SPCC regulation until August 18, 2006;
some will be new facilities beginning operation after that date. EPA
agrees with the USWAG comments that a compliant discharge history of
ten years or more provides a higher degree of assurance of continuing
compliance than a history of ten years or less. This is particularly
true when comparing ten-year compliant facilities to otherwise
qualified facilities which began operations after August 16, 2002, and
whose owners or operators, to date, have not been subject to the
requirements of the SPCC program, as well as start-up facilities
without any operating history. EPA considered whether owners or
operators of newer facilities that do not have ten years of compliance
and operation without a discharge should be required to provide a one-
time notification to the Agency. This notification would be submitted
to the Administrator within 30 days of self-certifying a facility's
SPCC Plan and would include the following information: (1) Name of the
facility owner/operator; (2) mailing address of the facility owner/
operator; (3) type of business conducted at the facility that is
subject to the requirements of this part; (4) above-ground capacity of
the facility; (5) location of the facility by street address or, if
there is no street address, by longitude and latitude; and (6) year the
facility began operations. These notices could be provided by either
regular or electronic mail. The Agency would have the opportunity to
provide some basic SPCC outreach and educational support to these
owners and operators who, while otherwise demonstrating the
prerequisites for self-certification, are unable to demonstrate ten
years without a discharge as described in Sec.  112.1(b). This one-time
notification requirement, if adopted, would modify today's proposed
qualified facilities option by increasing its burden for some
facilities. EPA decided not to pursue this option because it does not
differ substantively from the proposed action and the additional burden
of a notification requirement was not considered necessary.
    The Agency welcomes comments on these or other alternatives that
could serve to reduce the burden to smaller oil-handling facilities in
particular, while at the same time maintaining appropriate levels of
environmental protection by preventing discharges of oil. Any
alternative approach presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider it
for final action.

B. Qualified Oil-Filled Operational Equipment

    EPA proposes to amend the Oil Pollution Prevention regulation (40
CFR part 112) to provide a definition of oil-filled operational
equipment and an optional alternative to the general secondary
containment requirements for oil-filled operational equipment that
meets the qualifying criterion (hereafter referred to as ``qualified
oil-filled operational equipment''). The proposal would allow owners
and operators of facilities with qualified oil-filled operational
equipment to have the alternative of preparing an oil spill contingency
plan and a written commitment of manpower, equipment and materials to
expeditiously control and remove any oil discharged that may be
harmful, without having to make an individual impracticability
determination as required in Sec.  112.7(d). The owner or operator
would also be required to establish and document an inspection or
monitoring program for this qualified oil-filled operational equipment
to detect equipment failure and/or a discharge, in lieu of providing
secondary containment.
    EPA proposes to add Sec.  112.7(k) to define the SPCC eligibility
criterion that qualified oil-filled operational equipment must meet in
order to be considered qualified oil-filled operational equipment.
Eligibility of a facility with oil-filled operational equipment would
be determined by considering the reportable discharge history from any
oil-filled operational equipment. The qualified oil-filled operational
equipment criterion specifically requires that the facility had no
discharges as described in Sec.  112.1(b) from any oil-filled
operational equipment in the ten years prior to the SPCC Plan
certification date, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than ten years.
    This proposed action would provide an alternative means of SPCC
compliance for this equipment;

therefore, an owner/operator could choose to follow the current SPCC
requirements to provide secondary containment for each piece of
qualified oil-filled operational equipment in accordance with Sec.
112.7(c) if desired. For example, oil-filled operational equipment at
electrical substations is often surrounded by a gravel bed, which
serves as a passive fire quench system and support for the facility
grounding network and can provide a restriction to movement of any oil
that may be released. Gravel beds, if designed to prevent a discharge
as described in Sec.  112.1(b) (i.e., drainage systems that do not
serve as a conduit to surface waters) may meet the general secondary
containment requirements of Sec.  112.7(c). EPA further notes that
facilities with oil-filled operational equipment located within
buildings with limited drainage, which prevents a discharge as
described in Sec.  112.1(b), may already meet the requirements for
general secondary containment of Sec.  112.7(c). If so, a contingency
plan for this equipment is not necessary. Ultimately, this would be a
decision by the owner and/or operator.
1. Proposed Oil-Filled Operational Equipment Definition
    In July 2002, EPA clarified that oil-filled equipment (i.e., oil-
filled electrical, operating, and manufacturing equipment) are not bulk
storage containers and therefore are not subject to the bulk storage
container provisions in Sec.  112.8(c), including specifically sized
secondary containment for bulk storage containers and integrity
testing. However, as EPA stated in the preamble to the July 2002
amendments, oil-filled equipment is subject to general secondary
containment requirements described in Sec.  112.7(c), which can be
provided by various means including drainage systems, spill diversion
ponds, etc. EPA believes these measures provide for safety and also
meet the needs of section 311(j)(1)(C) of the CWA.
    Though there are times when general secondary containment is
practicable for oil-filled operational equipment, the Agency agreed to
continue to evaluate whether the general secondary containment
requirements found in Sec.  112.7(c) should be modified for small
electrical and other types of equipment which use oil for operating
purposes. On September 20, 2004, EPA published a NODA which made
available and solicited comments on submissions to EPA suggesting that
alternate regulatory requirements for facilities with oil-filled and
process equipment would be appropriate (69 FR 56184). EPA has reviewed
the public comments and data submitted in response to this NODA and
presents today's proposal in accordance with our intention to consider
alternative containment options for electrical and operational
equipment.
    Today's proposal defines oil-filled operational equipment as
``equipment which includes an oil storage container (or multiple
containers) in which the oil is present solely to support the function
of the apparatus or the device. Oil-filled operational equipment is not
considered a bulk storage container, and does not include oil-filled
manufacturing equipment (flow-through process).'' Examples of oil-
filled operational equipment include, but are not limited to, hydraulic
systems, lubricating systems (e.g., those for pumps, compressors and
other rotating equipment, including pumpjack lubrication systems), gear
boxes, machining coolant systems, heat transfer systems, transformers,
circuit breakers, electrical switches, and other systems containing oil
to enable the operation of the devices.
    Oil-filled operational equipment differs from bulk storage
containers in several ways. Oil-filled operational equipment typically
has minimal oil throughput because such equipment does not require
frequent transfers of oil. Further, the oil contained in oil-filled
operational equipment, such as cooling or lubricating oil, is intrinsic
to the operation of the device and facilitates the function of the
equipment. A leak of oil from some oil-filled operational equipment can
be detected by low-level alarms and remote monitoring of the
performance of the equipment. For example, the loss of oil from
electrical equipment will result in the equipment ceasing to operate,
which will result in a power outage. Utilities have strong economic
incentives to prevent power outages, to discover and respond to an
outage, and to correct the conditions that produced the outage as
quickly as possible. In addition, oil-filled operational equipment is
often subject to routine maintenance and inspections to ensure proper
operation. Finally, oil-filled operational equipment is designed,
constructed, and maintained according to specifications for its
particular operation and construction materials are corrosion-
resistant.
    However, the oil storage capacity of oil-filled operational
equipment still counts towards the total oil storage capacity of the
facility. The SPCC regulation defines storage capacity of a container
as the shell capacity of the container. This definition applies to all
oil storage containers including bulk storage containers and all oil-
filled equipment. In order to determine the storage capacity of an
individual piece of oil-filled operational equipment, the owner/
operator would consider the total storage capacity of the piece of
equipment (i.e., add together the capacity of multiple compartments or
reservoirs of oil storage). The owner or operator must include the
storage capacity of oil-filled operational equipment in order to
determine applicability of the SPCC regulation to the facility.
    As proposed today, oil-filled manufacturing equipment (which
involves a flow-through process) would not qualify for this
alternative. Under the current rule, oil-filled manufacturing equipment
(which is a subset of oil-filled equipment) is not defined as a bulk
storage container. Oil-filled manufacturing equipment includes, for
example, process vessels, conveyances such as piping associated with a
process, and equipment used in the alteration, processing or refining
of crude oil and other non-petroleum oils, including animal fats and
vegetable oils Oil-filled manufacturing equipment is inherently more
complicated than oil-filled operational equipment because it typically
involves a flow-through process and is commonly interconnected through
piping. For example, oil-filled manufacturing equipment receives a
continuous source of oil, in contrast to the static capacity of other,
non-flow-through oil-filled equipment.
    Today's proposal would not change any requirements for oil-filled
manufacturing equipment. Oil-filled manufacturing equipment remains
subject to the general SPCC requirements under Sec.  112.7, including a
demonstration of impracticability under Sec.  112.7(d) if the SPCC Plan
does not provide for secondary containment as required by Sec.
112.7(c). The containers associated with storage of raw products, or
the finished oil products are bulk storage containers and are not
considered oil-filled manufacturing equipment or oil-filled operational
equipment. Additionally, piping systems not associated with the
alteration, processing or refining of crude oil and other non-petroleum
oils, including animal fats and vegetable oils are not considered oil-
filled manufacturing equipment. EPA expects the owner/operator to
delineate bulk storage containers from the oil-filled manufacturing
equipment in the facility SPCC Plan (e.g., on the facility diagram and
in discussion of compliance with inspection requirements of the rule).
Additionally, while oil-filled manufacturing equipment is not a bulk

storage container and is therefore not subject to the frequent visual
inspection requirement for bulk storage containers under Sec.
112.8(c)(6), EPA believes that it is good engineering practice to have
some form of visual inspection or monitoring for oil-filled
manufacturing equipment in order to prevent discharges as described in
Sec.  112.1(b). Furthermore, it is a challenge to comply with several
of the SPCC provisions (for example, requirements for security under
Sec.  112.7(g) and for countermeasures for discharge discovery under
Sec.  112.7(a)(3)(iv)) without some form of inspection or monitoring
program.
2. Eligibility Criteria--Reportable Discharge History
    Under today's proposal, the alternative to secondary containment
for qualified oil-filled operational equipment would not be available
to facilities that have had a reportable discharge from any oil-filled
operational equipment in the ten years prior to the SPCC Plan
certification date, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than ten years. This criterion
is based on a proposal submitted by USWAG, as described in the
documents supplementing the September 20, 2004 NODA at 69 FR 56184. In
its proposal, USWAG recognized that facilities that pose a risk, in the
form of discharges of oil in quantities that are harmful (reportable
under 40 CFR part 110), should not be granted regulatory relief. In
general, NODA commenters expressed strong support for the USWAG
proposal.
    40 CFR 110.3 defines a discharge of oil ``in such quantities that
may be harmful to the public health, welfare, or the environment of the
United States as a discharge of oil that violates applicable water
quality standards; a discharge of oil that causes a film or sheen upon
the surface of the water or adjoining shorelines; or a discharge of oil
that causes a sludge or emulsion to be deposited beneath the surface of
the water or adjoining shorelines. The Agency refers to such discharges
in Sec.  112.1(b) of the rule. Any person in charge of a facility must
report any such discharge of oil from the facility to the National
Response Center (NRC) at 1-800-424-8802 immediately. While EPA
recognizes that past discharge history does not necessarily predict
future performance, the Agency believes that discharge history can be
used as a surrogate measure for a facility's ability to appropriately
manage its oil. Hence, as with the ``qualified facilities'' proposal,
EPA proposes to use this discharge history criterion to identify a
facility's ability to effectively implement its SPCC Plan and prevent
discharges in quantities that may be harmful. In establishing a good
oil spill prevention history, a facility then qualifies for the oil
spill contingency plan option offered in this proposal. Because the
Agency is proposing to extend this relief to all oil-filled operational
equipment, regardless of the oil storage capacity of the equipment,
this criterion is critical in establishing an appropriate balance
between environmental protection and burden relief by identifying those
facilities which have demonstrated good spill prevention practices in
the past.
    The Agency requests comments on the appropriateness of a reportable
discharge history criterion for determining the qualifications of a
facility with oil-filled operational equipment for this alternative,
whether it is necessary, and whether there are other measures of a
facility's effective implementation of the oil pollution prevention
requirements for oil-filled operational equipment under 40 CFR part 112
that should be considered. In addition, the Agency also specifically
requests comments on the proposed ten-year period by which facilities
can meet the discharge history criterion. Any alternative time periods
suggested must include an appropriate rationale and supporting data in
order for the Agency to be able to consider them for final action. The
Agency is also aware that events such as natural disasters, acts of war
or terrorism, sabotage, or other calamities, beyond the control or
planning ability of the facility owner or operator, may cause a
reportable oil discharge. The Agency therefore requests comments on how
to account for such occurrences in the discharge history criterion.
3. Proposed Requirements for Qualified Oil-Filled Operational Equipment
in Lieu of Secondary Containment
a. Contingency Plans and a Written Commitment of Manpower, Equipment
and Materials
    The regulated community, particularly electrical facilities,
identified secondary containment for oil-filled operational equipment
as one of its major cost concerns. This sentiment was echoed in the
comments submitted in response to the NODAs. With this proposal, the
Agency is responding to those concerns by providing targeted relief
without compromising on environmental protection. EPA believes that
secondary containment may be often impracticable for oil-filled
operational equipment due to inherent design and safety considerations,
as well as site configuration. The oil associated with oil-filled
operational equipment remains inside the equipment and transfers do not
occur regularly; for oil-filled electrical equipment (e.g.,
transformers) transfers may occur infrequently, if at all. Operational
equipment is designed, constructed, and maintained according to
specifications for its particular operation and construction materials
are corrosion-resistant. The complexity of the equipment and the nature
of the use of this equipment may not lend itself to traditional bulk
storage containment methods and thus flexibility is appropriate in this
area and may improve compliance with oil pollution prevention measures.
The proposed amendments to Sec.  112.7 would give a facility with
qualified oil-filled operational equipment the option of implementing
an oil spill contingency plan and written commitment of manpower,
equipment, and materials required to expeditiously control and remove
any quantity of oil discharged that may be harmful in lieu of secondary
containment for this equipment, without having to make an
impracticability determination for each piece of equipment. It should
be noted that the use of a contingency plan does not relieve the owner/
operator of liability associated with an oil discharge to navigable
waters or adjoining shorelines that violates the provisions of 40 CFR
part 110.
    In the preamble to the 2002 amendments, EPA discusses how any
facility which makes a determination of impracticability and has
submitted a Facility Response Plan (FRP) under Sec.  112.20 is exempt
from the contingency planning requirement because such a response plan
is more comprehensive than a contingency plan following 40 CFR part
109. The Agency believes that this should also apply to a facility with
qualified oil-filled operational equipment which would choose to
utilize contingency planning in lieu of secondary containment in
accordance with today's proposal. If such a facility has already
developed an FRP to comply with Sec.  112.20, then it would not need to
also develop a contingency plan in accordance with 40 CFR part 109 for
the qualified oil-filled operational equipment.
    Since, by definition, oil-filled operational equipment is not
considered a bulk storage container, the facility owner or operator is
not required to comply with the bulk storage requirements under Sec.
112.8(c) or to conduct both periodic integrity testing of the
containers and periodic integrity

and leak testing of the valves and piping as described under Sec.
112.7(d). However, EPA believes that inspections or monitoring are
important when there is no secondary containment in place. Therefore,
EPA is proposing to require facilities with qualified oil-filled
operational equipment choosing the proposed alternative to secondary
containment to develop and implement an inspection or monitoring
program, as further discussed in section B.3.b. of this section of the
preamble. Since this proposal for qualified oil-filled operational
equipment would provide an optional method of SPCC compliance, a
facility with such equipment could choose to follow the current SPCC
requirements and provide general secondary containment in accordance
with Sec.  112.7(c) for this equipment if desired. Ultimately, this
would be a decision of the owner and/or operator.
    Facilities with qualified oil-filled operational equipment that
choose the proposed alternative to secondary containment and that
subsequently experience a discharge would not automatically lose
eligibility for today's proposed relief. Owners/operators of facilities
which discharge oil in quantities that may be harmful from oil-filled
operational equipment should re-evaluate the effectiveness of the SPCC
Plan (specifically the contingency plan, written commitment of
resources and inspections/monitoring alternative discussed in today's
proposal) and determine the need for secondary containment measures in
lieu of contingency planning. Additionally, the Regional Administrator
(RA) may determine that a facility is no longer eligible to have a
contingency plan in lieu of secondary containment without making an
impracticability determination, and such facilities may be required to
amend their Plans to provide secondary containment for their oil-filled
operational equipment. The RA has the authority to require SPCC Plan
amendments under Sec.  112.4. Section 112.4(a) requires a facility that
has discharged more than 1,000 gallons of oil in a single discharge as
described in 40 CFR part 110, or that discharged more than 42 gallons
of oil in each of two discharges as described in 40 CFR part 110 in any
12-month period to submit information to the RA within 60 days of the
date of the discharge. As per Sec.  112.4(d), the RA has the authority
to require the facility to amend its SPCC Plan in order to prevent and
contain discharges; e.g., the RA may require a facility to install
secondary containment for oil-filled operational equipment. In
addition, a discharge of oil under 40 CFR part 110 that does not
trigger the reporting requirements of Sec.  112.4(a) must still be
reported to the National Response Center. EPA also receives copies of
the NRC reports and has the authority under Sec.  112.1(f) to require a
facility to prepare and implement an SPCC Plan or any applicable part
of a Plan. Thus, the RA may require a Plan, partial Plan, or amendments
to the Plan to achieve full compliance with the rule, as deemed
appropriate to prevent further discharges in quantities that may be
harmful.
b. Inspections or Monitoring Program
    Facility owners or operators that wish to take advantage of this
proposed alternative would be required to develop an appropriate set of
procedures for inspections or a monitoring program for qualified oil-
filled operational equipment. For facilities that rely on contingency
planning in lieu of secondary containment for qualified oil-filled
operational equipment, discharge discovery by inspection or monitoring
is of paramount importance for effective and timely implementation of
the contingency plan. An inspection or a monitoring program would
ensure that facilities are alerted quickly of equipment failures and/or
discharges. A written description of the inspection or monitoring
program would be required to be included in the SPCC Plan. Under the
existing requirement in Sec.  112.7(e), the owner or operator would be
required to keep a record of inspections and tests, signed by the
appropriate supervisor or inspector, for a period of three years.
Records of inspections and tests kept under usual and customary
business practices suffice (e.g., records of inspections and tests
required by this rule may be maintained in electronic or any other
format which is readily accessible to the facility and to EPA
personnel).
    While oil-filled operational equipment is not a bulk storage
container and is therefore not subject to the frequent visual
inspection requirement for bulk storage containers under Sec.
112.8(c)(6), EPA believes that it is good engineering practice to have
some form of visual inspection or monitoring for oil-filled operational
equipment in order to prevent discharges as described in Sec.
112.1(b). Additionally, it is a challenge to comply with several of the
SPCC provisions (for example, requirements for security under Sec.
112.7(g) and for countermeasures for discharge discovery under Sec.
112.7(a)(3)(iv)) without some form of inspection or monitoring program.
    A facility owner/operator must be able to quickly detect a
discharge from qualified oil-filled operational equipment in order for
a contingency plan to be effective. Oil-filled operational equipment
may be frequently monitored by employees tending to the operation, and
in such a case, discharges of oil would be noticed quickly. For many
types of operational equipment, particularly oil-filled electrical
equipment, releases of oil rapidly decrease the functionality of the
equipment--for oil-filled electrical equipment, loss of dielectric
fluid leads to equipment failure and an interruption of electric power
transmission. The need for equipment reliability assures prompt
detection of releases of oil, enhancing the probability of a prompt
response action. Therefore, in lieu of secondary containment, today's
proposal for qualified oil-filled operational equipment includes the
requirement for a facility owner/operator to establish and document an
inspection or monitoring program, in addition to the preparation of a
contingency plan, and a written commitment of manpower, equipment, and
materials to expeditiously control and remove oil discharged.
    The Agency requests comments on the appropriateness of this
requirement as a qualification for this alternative, and whether there
are other measures that a facility could take to ensure that a
contingency plan is activated in a timely manner upon equipment failure
or discharge. The Agency also requests comments on whether there are
other requirements that should be added for facilities with oil-filled
operational equipment to be able to establish and document an
inspection or monitoring program, use a contingency plan, and provide a
written commitment of manpower, equipment and materials in lieu of
secondary containment for qualified oil-filled operational equipment.
Any alternative approach presented must include an appropriate
rationale and supporting data in order for the Agency to be able to
consider it for final action.

Alternative Options Considered

    EPA considered alternative approaches to address streamlined
requirements for small oil-filled operational equipment. One option was
similar to the qualified facilities proposal, in which eligibility of a
facility with oil-filled operational equipment would be determined by
considering capacity thresholds and reportable discharge history from
any

oil-filled operational equipment. Another option would call for a
tiered set of requirements for electrical and other oil-filled
operational equipment. EPA also considered options similar to those
presented for the qualified facilities proposal: (1) providing an
indefinite extension of the Plan revision and implementation dates for
certain types of oil-filled operational equipment; and (2) suspending
all SPCC requirements for certain types of oil-filled operational
equipment.
a. Capacity Threshold Qualifier
    The Agency considered an alternative approach based on various
levels of aggregate oil storage capacity at a facility for determining
which facilities would be eligible for reduced burden as qualified oil-
filled operational equipment. EPA considered limiting the proposed
option by including two alternative storage capacity thresholds from
which the owner/operator may determine the equipment or facility's
eligibility: (1) The storage capacity of an individual piece of oil-
filled operational equipment is 1,320 gallons or less, regardless of
the facility's total oil-filled operational equipment aggregate
capacity; or (2) the aggregate oil-filled operational equipment storage
capacity at the facility is 10,000 gallons or less. EPA also considered
an alternative range of thresholds for both an individual piece of oil-
filled operational equipment (ranging from 2,640 to 5,000 gallons) and
for the facility aggregate capacity of 20,000 gallons in order to
provide a greater degree of burden reduction than the alternative
thresholds considered by EPA. In determining potential threshold
capacities, EPA considered current thresholds in the rule, as well as
proposals by industry. This was intended to limit this relief to small
pieces of oil-filled operational equipment or to facilities storing
smaller aggregate volumes of oil in oil-filled operational equipment.
The total facility oil-filled operational equipment storage capacity
threshold addresses the co-location of oil-filled operational equipment
within a facility.
    The Agency decided not to propose a threshold criterion because we
believe this equipment is unique and different from bulk storage
containers and manufacturing equipment (flow-through process) such that
the spill history alone suffices as a qualifying criterion to determine
eligibility. The Agency was also concerned with the limited amount of
information provided in response to the NODA. The data submitted in
response to the NODA was primarily from the electrical industry and the
Agency has no information describing the types of oil-filled
operational equipment, capacities and distribution for other
industries. Additionally, we have limited specific information on the
various sizes of oil-filled electrical equipment to assist in
establishing a threshold for an individual piece of equipment.
    The Agency seeks comments on whether eligibility for qualified oil-
filled operational equipment status should be based on a specific level
of aggregate oil-filled operational equipment storage capacity at a
given facility. The Agency seeks comments on whether a threshold
criterion achieves an appropriate balance of facility burden and
environmental protection for oil-filled operational equipment. Any
available data specific to either the capacity, location, or size
distribution of oil-filled operational equipment within a facility or
within a specific industry sector would be useful in Agency
deliberations for final rulemaking. Comments specific to establishing a
threshold criterion for oil-filled operational equipment should include
supporting data that: (1) Demonstrates why the suggested volume
threshold is preferred; and (2) estimates the number (or percentage) of
facilities that would be eligible for qualified oil-filled operational
equipment status. Any alternative approach presented should include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for final action.
b. Multi-Tiered Structure
    The tiered structure option was considered in response to comments
EPA received following publication of a Notice of Data Availability for
oil-filled equipment (69 FR 56184, September 20, 2004) and is based on
a previous proposal put forth by USWAG that focused on electrical
equipment. A central element of this option would allow the facility
owner or operator to define each discrete unit of this type of oil-
filled equipment as a facility. This option would also establish three
tiers for regulated onshore oil-filled operational equipment based on
the storage capacity of the equipment. Individual pieces of oil-filled
operational equipment with an oil storage capacity of 1,320 gallons or
less (Tier 1) would have been exempt from all SPCC requirements. For
individual pieces of oil-filled operational equipment with a capacity
greater than 1,320 but less than 20,000 gallons and which meet
additional qualifying criteria (Tier II), facility owners and operators
would have the option of preparing a contingency plan in lieu of an
SPCC Plan. Such an approach would have exempted a significant portion
of the regulated universe with oil-filled operational equipment from
the development of an SPCC Plan entirely and instead would only need to
develop a contingency plan and a written commitment of manpower,
equipment and materials in the event of a discharge. Tier III would
require that all other oil-filled operational equipment with capacities
greater than 20,000 gallons for an individual piece of equipment be
required to comply with the current SPCC rule.
    Although the Agency agrees that some regulatory modifications are
appropriate for facilities containing oil-filled operational equipment,
there is still a reasonable potential for discharge from this equipment
and coverage by some type of SPCC Plan is warranted. The Agency
believes this is true even for facilities composed entirely of oil-
filled operational equipment. EPA also has concerns about the
suggestion to allow facility owners and operators to define each piece
of oil-filled equipment as a separate facility because of the potential
for greater rule complexity, implementation questions and confusion
across the wide variety of facilities covered by the SPCC rule. For
example, the Agency may have to define and develop criteria that would
be used by the facility owner or operator to determine which equipment
is a separate facility, which is not, and how the elements of a
facility plan would address these differences. Uncertainty and
confusion about the definition of a facility could lead to a greater
lack of compliance and the potential for greater environmental harm.
c. Extension/Suspension Options
    EPA could propose an indefinite extension to the compliance dates,
similar to the previous extensions already granted, that would apply to
oil-filled operational equipment. This action would allow EPA more time
to decide how to regulate oil-filled operational equipment without
delaying compliance for the entire universe of SPCC-regulated
facilities and equipment. However, the extension would be for a yet-to-
be-determined length of time, and for an unspecified set of
requirements. Since so many facilities have oil-filled operational
equipment, if changes to these requirements are delayed, a significant
number of facilities might have to modify their existing Plans more
than once to accommodate future rule changes. As with past extensions,
EPA would continue to require that oil-filled operational equipment
comply with pre-

2002 SPCC requirements during the interim period at facilities that
should have had an SPCC Plan as of August 16, 2002, providing no
immediate relief.
    A suspension of all requirements for oil-filled operational
equipment would provide immediate relief until further notice and
provided EPA with more time to decide how to regulate this equipment.
The Agency is concerned that this option provides no environmental
protection during the time that new requirements are developed.
    EPA welcomes comments on these or other alternatives that could
reduce the burden at facilities with oil-filled operational equipment,
while maintaining appropriate levels of environmental protection. The
Agency is also interested in comments related to the application of the
USWAG proposal to other types of oil-filled operational equipment. Any
alternative approaches presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider them
for final action.

Qualified Facilities and Qualified Oil-Filled Operational Equipment
Overlap

    Some facilities would meet the criteria for both qualified
facilities and qualified oil-filled operational equipment. Such
facilities would be able to benefit from both of the burden-reduction
options proposed under today's action. The owner or operator could
choose to develop a contingency plan and a written commitment of
manpower, equipment and materials in lieu of secondary containment for
qualified oil-filled operational equipment. Since no impracticability
determination would be required for qualified oil-filled operational
equipment, the owner or operator could self-certify his/her SPCC Plan
and would not be required to have a PE develop and certify the
contingency plan for the qualified oil-filled operational equipment.
The responsibility of preparing a contingency plan and identifying the
necessary equipment, materials and manpower to implement the
contingency plan would fall on the owner or operator of the qualified
facility.

C. Motive Power

    There are some motive power containers already exempt from the SPCC
requirements based on the rule exemption for containers with an oil
storage capacity of less than 55 gallons. However, there are certain
motor vehicles (including aircraft) that contain oil in capacities
greater than or equal to 55 gallons solely for the purpose of providing
fuel for propulsion, or solely to facilitate the operation of the
vehicle. The concept of ``motive power'' is not addressed in the SPCC
regulations, but the EPA-DOT MOU in Appendix A to 40 CFR part 112
specifically refers to the transportation of oil, not to transportation
in the general sense. As a result, oil storage containers with a
capacity greater than 55 gallons used for motive power fall under the
SPCC rule and secondary containment and other SPCC requirements apply.
However, EPA never intended to regulate motive power containers on
buses, sport utility vehicles, small construction vehicles, aircraft
and farm equipment, or facilities or locations such as heavy equipment
dealers, commercial truck dealers, or certain parking lots that may be
subject to the SPCC requirements (including bulk storage containment,
inspection, and overfill protection) solely because of the presence of
motive power containers. Nor does EPA intend to require facilities
otherwise subject to the SPCC rule to include motive power containers
in their Plans.
1. Definition of Motive Power
    EPA proposes to amend the Oil Pollution Prevention regulation (40
CFR part 112) to exempt motive power containers, defined as ``onboard
bulk storage containers used solely to power the movement of a motor
vehicle, or ancillary onboard oil-filled operational equipment used
solely to facilitate its operation.'' This definition is intended to
describe containers such as the fuel tanks that are used solely to
provide fuel for a motor vehicle's movement or the hydraulic and
lubrication operational oil-filled containers used solely for other
ancillary functions of a motor vehicle. This definition would not
include transfers of fuel or other oil into motive power containers at
an otherwise regulated facility, or a bulk storage container mounted on
a vehicle for any purpose other than powering the vehicle itself, for
example, a tanker truck or refueler. The definition of motive power
containers would not include oil drilling or workover equipment.
Specifically, it would not apply to the drilling or workover rigs
themselves; however, other earthmoving equipment (such as a bulldozer,
trucks, or earth-moving equipment) located at a drilling or workover
facility would be included in the scope of the definition. Similarly,
seismic exploration vehicles located at, for example, oil and gas
drilling, workover and production facilities, would be included in the
scope of the definition of motive power.
    The Agency is seeking comments on the proposed definition of motive
power containers or if there are any other definitions for ``motive
power'' that would be more suitable. Any alternative approach presented
must include an appropriate rationale and supporting data in order for
the Agency to be able to consider it for final action.
2. Proposed Exemption
    This proposed rule amendment would exempt motive power containers,
as defined above, from SPCC rule applicability through a proposed
additional paragraph under the general applicability section, Sec.
112.1(d). Furthermore, these storage containers would not be counted
toward facility capacity under Sec.  112.1(d)(2). EPA recognizes that
there is a potential for an oil discharge as described in Sec.
112.1(b) from motive power containers, such as from a breach in the
fuel storage container, from an overfill event, or from a rupture of
oil-filled operational equipment such as a hydraulic line on heavy
construction equipment. EPA has the authority, under 311(j)(1)(C) of
the CWA, to impose requirements to prevent oil discharges from motive
power containers. The Regional Administrator has the option under Sec.
112.1(f) to require facilities with motive power containers to prepare
and implement an SPCC Plan or any applicable part, if a determination
is made that it is necessary in order to prevent a discharge of oil
into waters of the United States.
    EPA notes that although this proposal provides the fuel tanks and
ancillary oil-filled operational equipment on motor vehicles with an
exemption from SPCC requirements, oil transfer activities occurring
within an SPCC covered facility would continue to be regulated. An
example of such an activity would be the transfer from an onsite tank
via a dispenser to motive power containers. This transfer activity is
subject to the general secondary containment requirements of Sec.
112.7(c), but is not subject to the requirements of Sec.  112.7(h),
because it does not occur across a loading/unloading rack. Regulating a
transfer between unregulated motive power containers and a regulated
tank is required by Sec.  112.1(b), which requires that the SPCC rule
apply to owners or operators of facilities that transfer oil and oil
products. Another example would be an airport mobile refueler at an
SPCC-regulated airport that transfers oil to motive power containers or
to an aircraft. That transfer activity would again be subject to the
general secondary containment requirements of Sec.  112.7(c), but not
subject to the

requirements of Sec.  112.7(h), again because it does not generally
occur across a loading/unloading rack.
    An onboard bulk storage container that supplies oil for the
movement of a vehicle or operation of onboard equipment, and at the
same time is used for the distribution or storage of this oil is not
subject to this proposed exemption. For example, a mobile refueler that
has an onboard bulk storage container used to distribute fuel to other
vehicles on a site may also draw its engine fuel (for propulsion) from
that container. Because EPA continues to consider bulk storage
containers mounted on vehicles or towed by a vehicle (such as a typical
cargo tanker truck) subject to certain transfer-related SPCC
requirements, these containers are not subject to today's proposed
exemption. As noted above, the exemption applies only to onboard bulk
storage containers used solely to provide motive power or to facilitate
the operation of the vehicle.
    EPA is not extending the exemption for motive power containers to
oil drilling and workover equipment, including rigs. The Agency
believes that due to the unique nature of oil drilling and workover rig
operations and the large amounts and high flow rates of oil associated
with these activities, it would not be appropriate or environmentally
sound to exempt them from the SPCC requirements, and thus they should
remain subject to 40 CFR part 112. The purpose of offering the
exemption is to offer relief for a particular set of equipment (e.g.,
automobiles) that may be present at an otherwise regulated SPCC
facility, and not to offer relief for facilities that may be mobile and
move from place to place as in the case of a drilling or workover rig.
Although drilling and workover equipment, including rigs, are not
exempt, other motive power equipment located at drilling or workover
facilities (e.g., trucks, automobiles, bulldozers, seismic exploration
vehicles or other earth-moving equipment) would be exempted. The agency
believes that the general protection and the spill response and
planning activities provided at an otherwise regulated SPCC facility
will help the facility to address the spills associated with these
motive power containers. However, the specific provisions (such as
blowout prevention) which are present in the current rule for drilling
or workover rigs, need to be preserved to maintain an adequate level of
environmental protection for these unique activities. Therefore, an
exemption for drilling and workover equipment, including rigs, is
inappropriate.
3. Alternative Options Considered
    EPA considered other options to address motive power containers
greater than 55 gallons in size. These options included: (1) Exemption
of all motive power containers, except motive power containers on
aircraft and mining equipment, which would be subject to the general
requirements under Sec.  112.7; (2) exemption of all motive power
containers below a certain gallon threshold, with containers above this
threshold remaining subject to the general requirements under Sec.
112.7; and (3) exclusion of motive power containers only from the
facility storage capacity calculation and bulk storage container
requirements.
a. Equipment-Based Motive Power Exemption
    EPA could choose to exempt motive power containers, except
containers on aircraft and mining equipment, from the requirements of
40 CFR part 112. The majority of motive power containers would be
exempt from the SPCC rule. EPA would require that the containers on
aircraft and mining equipment be covered by the SPCC requirements
because these containers typically have much larger volume than other
motive power containers and potentially pose a greater threat to the
environment in the event of a discharge as described in 112.1(b).
However, in the context of motive power containers, there is no
information on the degree of likelihood of a discharge from motive
power containers of different oil storage capacities nor is there data
available to EPA specific to mining and aircraft equipment discharges
that would justify this option. Therefore, the Agency chose not to
propose this option.
b. Threshold-Based Motive Power Exemption
    Another option considered was to exempt motive power containers
with a capacity below a certain threshold, and requiring containers
with a capacity above the established threshold to have appropriate
containment under Sec.  112.7(c). Those motive power containers
included in the rule would only be required to have general
containment, and would be exempt from all other requirements in
Sec. Sec.  112.7 and 112.8(c). However, EPA rejected this option
because it has no basis for choosing an appropriate threshold for these
containers and there is no data that clearly supports any specific
quantity. In addition, it would still present implementation problems
for those motive power containers that were subject to the regulation.
c. Exclusion From Storage Capacity Calculation
    EPA could exclude motive power containers from the storage capacity
determination at a regulated facility and from the definition of bulk
storage container to clarify that these containers are not counted
towards the 1,320 gallon aboveground oil storage threshold for the
regulation. Nevertheless, the facility would have to consider these
containers in their overall facility SPCC Plan. Although motive power
containers would not be considered bulk storage containers, they would
be subject to the general requirements of the rule under Sec.  112.7,
including the provision for secondary containment. The facility SPCC
Plan would have to identify the presence of motive power containers on-
site, in addition to their reasonable potential for discharge as per
Sec.  112.7(b). This option is more complex for the regulated community
and is not a clear exemption of motive power containers.
    Each of these alternative options was rejected because they did not
address the implementation issues with regulating motive power
containers under the SPCC requirements. The Agency welcomes comments on
these or other alternatives that could serve to reduce the burden for
facilities with motive power containers, while at the same time
maintaining appropriate levels of environmental protection. Any
alternative approaches presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider them
for final action.

D. Airport Mobile Refuelers

    Airport mobile refuelers are vehicles that are used on an airport
to refuel aircraft and ground service equipment. Their onboard bulk
storage containers are used to transport and transfer fuel and are
subject to the SPCC rule because they are containers used to store oil
prior to use, while being used, or prior to further distribution in
commerce. As such, they are subject to all applicable SPCC rule
provisions, including the secondary containment provisions of Sec.
112.8(c)(2) (applicable to all bulk storage containers) and Sec.
112.8(c)(11) (applicable more specifically to mobile/portable bulk
storage containers). These provisions require a secondary means of
containment, such as a dike or catchment basin, sufficient to contain
the capacity of the largest single compartment or container with
sufficient freeboard to contain precipitation.

    Regulated community members in the aviation sector have expressed
concern that requiring sized secondary containment for airport mobile
refuelers is not practicable for safety and security reasons. They
argue that requiring refuelers to park in specially designed secondary
containment areas located within an airport's aircraft operations area
could create a safety and security hazard because it entails grouping
the vehicles or placing impediments in the operations area. In
addition, they claim that requiring mobile refuelers to return to
containment areas located within the airport's tank farm between
refueling operations may increase the risk of accidents (and therefore
accidental oil discharge), as the vehicles would travel with increased
frequency through the busy aircraft operations area. They also claim
that providing secondary containment for mobile refuelers during
airport operations presents inherent difficulties and point to controls
on design, inspection, maintenance and operation of mobile refuelers
imposed by the Federal Aviation Administration's Advisory Circulars.
For example, the storage containers on the mobile refuelers must be
manufactured to U.S. DOT-406 specifications for pressure vessels (49
CFR 178.346).
    EPA is aware that certain airports subject to FAA's regulations at
14 CFR part 139 require certification by the FAA Administrator or his
delegated agent. As part of this certification, the Agency understands
that compliance with Uniform Fire Code requirements, among other
requirements in 14 CFR part 139, must be detailed in the Airport
Certification Manual to obtain FAA approval and thus an Airport
Operating Certificate per part 139. The Agency understands that the
applicable Uniform Fire Code includes National Fire Protection
Association's (NFPA) 30, Flammable and Combustible Liquids Code, NFPA
407, Standard for Aircraft Fuel Servicing and NFPA 415, Standard on
Airport Terminal Buildings, Fueling Ramp Drainage, and Loading
Walkways. In particular, NFPA 407 requires that aircraft fuel servicing
vehicles and carts shall be positioned so that a clear path of egress
from the aircraft for fuel servicing vehicles shall be maintained
[5.12.1]. Further, in NFPA 415, the code specifically states that in no
case shall the design of a drainage system of any aircraft fueling ramp
allow fuel to collect on the aircraft fueling ramp or adjacent ground
surfaces where it constitutes a fire hazard [5.1.4]. As such, EPA
believes that subjecting mobile airport refuelers to the specifically
sized secondary containment requirements at Sec.  112.8(c)(2) and (11)
would directly conflict with the Uniform Fire Code applicable to fuel
handling at airports. EPA believes, however, that these bulk storage
containers should remain subject to the general secondary containment
requirements at Sec.  112.7(c) as this provision affords sufficient
flexibility to the owner/operator and certifying PE to select a spill
prevention method that would not conflict with the applicable Uniform
Fire Code. Thus, EPA is proposing to exempt airport mobile refuelers
from the specifically sized secondary containment requirements for bulk
storage containers in Sec.  112.8(c)(2) and (11). EPA believes that
this exemption is appropriate for airport mobile refuelers, so as not
to conflict with the specific Uniform Fire Code requirements for
airport fueling activities, while preserving environmental protection
(especially for fuel transfers associated with airport mobile
refuelers), afforded by the spill prevention provisions outlined in
Sec.  112.7(c). EPA also believes that this clarification for airport
mobile refuelers applies to mobile refuelers operating at all airports,
both those certified under 14 CFR part 139 and non-certified airports.
1. Definition of Airport Mobile Refueler
    EPA proposes to amend the Oil Pollution Prevention regulation (40
CFR part 112) to exempt airport mobile refuelers from the requirements
of Sec.  112.8(c)(2) and (11). In today's proposal, EPA defines an
airport mobile refueler as ``a vehicle with an onboard bulk storage
container designed for, or used to, store and transport fuel for
transfer into or from an aircraft or ground service equipment.'' This
definition is adapted from definitions in the U.S. DOT Federal Aviation
Administration's Advisory Circular 150/5230-4 on Aircraft Fuel Storage,
Handling, and Dispensing on Airports, and NFPA 407 for Aircraft Fuel
Servicing. The definition is intended to describe vehicles of various
sizes equipped with a bulk storage container such as a cargo tank (tank
trucks, tank full trailers, tank semitrailers, etc.) that are used to
fuel or defuel aircraft at airports.
2. Proposed Amended Requirements
    This proposed amendment would revise Sec.  112.8(c)(2) and (11) to
specifically exempt airport mobile refuelers, as defined above, from
these provisions. Since airport mobile refuelers are mobile or portable
bulk storage containers, the other provisions of Sec.  112.8(c) would
still apply. Secondary containment systems sufficient to contain the
capacity of the largest single compartment or container with sufficient
freeboard to contain precipitation would no longer be required.
Notwithstanding, there is a potential for oil discharges as described
in Sec.  112.1(b) from airport mobile refuelers. Indeed, there are
documented cases of reportable discharges while fuel is transferred
from storage into the mobile refuelers and during aircraft refueling
activities. Fuel leaks have occurred while the mobile refueler is
parked or idle. Therefore, the general secondary containment
requirements of Sec.  112.7(c) would continue to apply to airport
mobile refuelers under this proposal.
    Section 112.7(c) lists several appropriate containment methods a
facility owner or operator can provide, including curbs, gutters,
barriers, or sorbent materials. However, EPA recognizes that permanent
containment structures such as curbs may not be appropriate in all
cases. The Agency made informal contact with nine airport engineering
and construction firms who indicated that providing sized secondary
containment areas for airport mobile refuelers is not a common
practice. We also learned that mobile refuelers are not involved in
every airport fueling operation, and when refuelers are present, there
is no standard method for ensuring sized secondary containment. EPA
cautions that these results are drawn from only a small number of firms
that provide construction and engineering support for the aviation
industry rather than directly from the airport owners or operators.
    Appropriate containment and/or diversionary structures or equipment