SEQ CHAPTER \h \r 1 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-]

RIN 2050-AG16

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

AGENCY: 	Environmental Protection Agency.

ACTION: 	Final rule.

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

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

ADDRESSES:  The public docket for this rulemaking, Docket ID No.
EPA–HQ–OPA–2007–0584, contains the information related to this
rulemaking, including the response to comment document. All documents in
the docket are listed in the index at http://www.regulations.gov.
Although listed in the index, some information may not be publicly
available, such as Confidential Business Information (CBI) or other
information the disclosure of which is restricted by statute. Certain
other material, such as copyrighted material, will be publicly available
only in hard copy. Publicly available docket materials are available
either electronically at http://www.regulations.gov or in hard copy at
the EPA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number of the Public Reading Room is 202–566–1744, and the
telephone number to make an appointment to view the docket is
202–566–0276.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil Information Center at
800–424–9346 or TDD at 800–553–7672 (hearing impaired). In the
Washington, DC metropolitan area, contact the Superfund, TRI, EPCRA,
RMP, and Oil Information Center at 703–412–9810 or TDD
703–412–3323. For more detailed information on specific aspects of
this final rule, contact either Vanessa E. Principe at 202–564–7913
(principe.vanessa@epa.gov), or Mark W. Howard at 202–564–1964
(howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC, 20460–0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

  TOC \o "1-3" \h \z \u    HYPERLINK \l "_Toc233536820"  I. General
Information	  PAGEREF _Toc233536820 \h  5

  HYPERLINK \l "_Toc233536821"  II.	Entities Potentially Affected by
This Final Rule	  PAGEREF _Toc233536821 \h  10

  HYPERLINK \l "_Toc233536822"  III. Statutory Authority and Delegation
of Authority	  PAGEREF _Toc233536822 \h  12

  HYPERLINK \l "_Toc233536823"  IV.	Background	  PAGEREF _Toc233536823
\h  12

  HYPERLINK \l "_Toc233536824"  V. 	This Action	  PAGEREF _Toc233536824
\h  15

  HYPERLINK \l "_Toc233536825"  A.	Final Amendments Effective without
Change	  PAGEREF _Toc233536825 \h  15

  HYPERLINK \l "_Toc233536826"  1.	Hot-Mix Asphalt (HMA)	  PAGEREF
_Toc233536826 \h  17

  HYPERLINK \l "_Toc233536827"  2.	Pesticide Application Equipment and
Related Mix Containers	  PAGEREF _Toc233536827 \h  18

  HYPERLINK \l "_Toc233536828"  3.	Applicability of Mobile Refueler
Requirements to Farm Nurse Tanks	  PAGEREF _Toc233536828 \h  19

  HYPERLINK \l "_Toc233536829"  4.	Residential Heating Oil Containers
PAGEREF _Toc233536829 \h  20

  HYPERLINK \l "_Toc233536830"  5.	Definition of Facility	  PAGEREF
_Toc233536830 \h  20

  HYPERLINK \l "_Toc233536831"  6.	Facility Diagram	  PAGEREF
_Toc233536831 \h  21

  HYPERLINK \l "_Toc233536832"  7.	Loading/Unloading Racks	  PAGEREF
_Toc233536832 \h  23

  HYPERLINK \l "_Toc233536833"  8.	General Secondary Containment
PAGEREF _Toc233536833 \h  24

  HYPERLINK \l "_Toc233536834"  9.	General Secondary Containment for
Non-Transportation-Related Tank Trucks	  PAGEREF _Toc233536834 \h  26

  HYPERLINK \l "_Toc233536835"  10.	Security	  PAGEREF _Toc233536835 \h
27

  HYPERLINK \l "_Toc233536836"  11.	Integrity Testing	  PAGEREF
_Toc233536836 \h  28

  HYPERLINK \l "_Toc233536837"  12.	Integrity Testing Requirements for
Animal Fats and Vegetable Oils	  PAGEREF _Toc233536837 \h  30

  HYPERLINK \l "_Toc233536838"  13.	Oil Production Facilities	  PAGEREF
_Toc233536838 \h  32

  HYPERLINK \l "_Toc233536839"  a. 	Definition of Production Facility
PAGEREF _Toc233536839 \h  33

  HYPERLINK \l "_Toc233536840"  b.	Modifications to §112.9 for Drilling
and Workover Facilities	  PAGEREF _Toc233536840 \h  34

  HYPERLINK \l "_Toc233536841"  c.	Exemption for Certain Intra-Facility
Gathering Lines	  PAGEREF _Toc233536841 \h  35

  HYPERLINK \l "_Toc233536842"  d.	Flowlines and Intra-facility
Gathering Lines	  PAGEREF _Toc233536842 \h  37

  HYPERLINK \l "_Toc233536843"  i. 	Compliance Alternative in Lieu of
Secondary Containment for Flowlines and Intra-facility Gathering Lines
PAGEREF _Toc233536843 \h  37

  HYPERLINK \l "_Toc233536844"  ii.	Contingency Plan for Flowlines and
Intra-facility Gathering Lines	  PAGEREF _Toc233536844 \h  38

  HYPERLINK \l "_Toc233536845"  iii.	Requirements for a Flowline and
Intra-Facility Gathering Line Maintenance Program....	  PAGEREF
_Toc233536845 \h  41

  HYPERLINK \l "_Toc233536846"  e.	Flow-Through Process Vessels
PAGEREF _Toc233536846 \h  43

  HYPERLINK \l "_Toc233536847"  i.	Exemption from Sized Secondary
Containment for Flow-Through Process Vessels	  PAGEREF _Toc233536847 \h
43

  HYPERLINK \l "_Toc233536848"  ii.	Additional Requirements in Lieu of
Sized Secondary Containment for Flow-Through Process Vessels	  PAGEREF
_Toc233536848 \h  45

  HYPERLINK \l "_Toc233536849"  iii.	Reportable Discharge from
Flow-Through Process Vessels	  PAGEREF _Toc233536849 \h  46

  HYPERLINK \l "_Toc233536850"  f. 	Clarification of the Definition of
Permanently Closed Containers	  PAGEREF _Toc233536850 \h  47

  HYPERLINK \l "_Toc233536851"  14. 	Man-made Structures	  PAGEREF
_Toc233536851 \h  48

  HYPERLINK \l "_Toc233536852"  15.	Wind Turbines	  PAGEREF
_Toc233536852 \h  48

  HYPERLINK \l "_Toc233536853"  16.	Technical Corrections	  PAGEREF
_Toc233536853 \h  49

  HYPERLINK \l "_Toc233536854"  B.	Technical Corrections to Provisions
of the December 2008 Amendments	  PAGEREF _Toc233536854 \h  50

  HYPERLINK \l "_Toc233536855"  1. 	Tier I Qualified Facilities and
Appendix G Plan Template	  PAGEREF _Toc233536855 \h  50

  HYPERLINK \l "_Toc233536856"  2. 	Underground Emergency Diesel
Generator Tanks at Nuclear Power Stations	  PAGEREF _Toc233536856 \h  54

  HYPERLINK \l "_Toc233536857"  3.	SPCC Plan Preparation and
Implementation for New Oil Production Facilities	  PAGEREF _Toc233536857
\h  55

  HYPERLINK \l "_Toc233536858"  4. 	Compliance Date Provisions Specific
to Farms	  PAGEREF _Toc233536858 \h  56

  HYPERLINK \l "_Toc233536859"  C.	Provisions Removed from Final Rule
PAGEREF _Toc233536859 \h  56

  HYPERLINK \l "_Toc233536860"  1. 	Exclusions for Oil Production
Facilities and Farms from Loading/Unloading Rack Requirements	  PAGEREF
_Toc233536860 \h  56

  HYPERLINK \l "_Toc233536861"  2. 	Alternative Qualified Facility
Eligibility Criteria for an Oil Production Facility	  PAGEREF
_Toc233536861 \h  57

  HYPERLINK \l "_Toc233536862"  3. 	Produced Water Containers	  PAGEREF
_Toc233536862 \h  65

  HYPERLINK \l "_Toc233536863"  D.	Oil and Natural Gas Pipeline
Facilities	  PAGEREF _Toc233536863 \h  73

  HYPERLINK \l "_Toc233536864"  VI. 	Statutory and Executive Order
Reviews	  PAGEREF _Toc233536864 \h  75

  HYPERLINK \l "_Toc233536865"  A.	Executive Order 12866 – Regulatory
Planning and Review	  PAGEREF _Toc233536865 \h  75

  HYPERLINK \l "_Toc233536866"  B.	Paperwork Reduction Act	  PAGEREF
_Toc233536866 \h  80

  HYPERLINK \l "_Toc233536867"  C.	Regulatory Flexibility Act	  PAGEREF
_Toc233536867 \h  83

  HYPERLINK \l "_Toc233536868"  D.	Unfunded Mandates Reform Act
PAGEREF _Toc233536868 \h  85

  HYPERLINK \l "_Toc233536869"  E.	Executive Order – 13132 Federalism
 PAGEREF _Toc233536869 \h  87

  HYPERLINK \l "_Toc233536870"  F.	Executive Order 13175 –
Consultation and Coordination with Indian Tribal Governments..	  PAGEREF
_Toc233536870 \h  88

  HYPERLINK \l "_Toc233536871"  G.	Executive Order 13045 – Protection
of Children from Environmental Health & Safety Risks	  PAGEREF
_Toc233536871 \h  88

  HYPERLINK \l "_Toc233536872"  H.	Executive Order 13211 – Actions
That Significantly Affect Energy Supply, Distribution, or Use	  PAGEREF
_Toc233536872 \h  89

  HYPERLINK \l "_Toc233536873"  I.	National Technology Transfer and
Advancement Act	  PAGEREF _Toc233536873 \h  89

  HYPERLINK \l "_Toc233536874"  J.	Executive Order 12898 – Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations	  PAGEREF _Toc233536874 \h  90

  HYPERLINK \l "_Toc233536875"  K.	Congressional Review Act	  PAGEREF
_Toc233536875 \h  90

I. General Information

	On December 5, 2008, the Environmental Protection Agency (EPA or the
Agency) amended the Spill Prevention, Control, and Countermeasure (SPCC)
rule to address a number of issues raised by the regulated community (73
FR 74236). EPA is now amending the December 2008 amendments to make
technical corrections.  In addition, EPA has decided to remove three
provisions from the SPCC rule it had adopted in December 2008.  In all
other respects, the amendments have not been changed. The following
provisions, which are intended to clarify, tailor, and streamline
certain requirements for those facility owners or operators who are
required to prepare and implement an SPCC Plan (or “Plan”), will
become effective without modification:

Exemption for hot-mix asphalt (HMA);

Exemption for pesticide application equipment and related mix
containers, regardless of ownership or where used, that may currently be
subject to the SPCC rule when crop oil or adjuvant oil is added to
pesticide formulations;

Exemption for residential heating oil containers, which applies to
aboveground containers, as well as completely buried heating oil
containers, at single-family residences, including those located at
farms;

Clarification that the definition of mobile refueler includes a nurse
tank, which is a mobile/portable container used at farms to store and
transport fuel for transfers to or from farm equipment (such as tractors
and combines) to other bulk storage containers (such as containers used
to provide fuel to wellhead/relift pumps) at the farm;

Amendment of the definition of “facility” to clarify that contiguous
or non-contiguous buildings, properties, parcels, leases, structures,
installations, pipes, or pipelines may be considered separate
facilities, and to reaffirm that the “facility” definition governs
the applicability of 40 CFR part 112;

Amendment of the facility diagram requirement at §112.7(a)(3) to
clarify how containers, fixed and mobile, are identified on the facility
diagram. EPA also clarified that where facility diagrams become
complicated due to the presence of multiple fixed oil storage containers
or complex piping/transfer areas at a facility, the owner or operator
can include that information separately in the SPCC Plan in an
accompanying table or key. For any mobile or portable containers located
in a certain area of the facility, an owner or operator can mark the
area on the diagram, as well as indicate the potential range in number
of containers and the anticipated contents and capacities of the mobile
or portable containers;

Definition of the term “loading/unloading rack,” and clarification
that this definition governs the applicability of the provisions for
facility tank car and tank truck loading/unloading racks at §112.7(h);

Amendment of the general secondary containment requirements at
§112.7(c) to clarify the scope of secondary containment so that an
owner or operator need only take into consideration the typical failure
mode, and most likely quantity of oil that would be discharged,
consistent with current Agency guidance. This amendment also provides
additional examples of prevention systems for onshore facilities found
at §112.7(c)(1);

Extension of the exemption from the sized secondary containment
requirement for mobile refuelers provided in the December 2006 SPCC rule
amendments (71 FR 77266, December 26, 2006) to
non-transportation-related tank trucks at a facility subject to the SPCC
rule;

Amendment of the facility security requirements at §112.7(g) to allow
an owner or operator of a facility to tailor his security measures to
the facility’s specific characteristics and location;

Amendment of the requirements at §§112.8(c)(6) and 112.12(c)(6) to
allow an owner or operator to consult and rely on industry standards to
determine the appropriate qualifications for personnel performing tests
and inspections, as well as the type and frequency of integrity testing
required for a particular container size and configuration;

Amendment of the integrity testing requirements at §112.12(c)(6) for an
owner or operator of a facility that handles certain types of animal
fats and vegetable oils (AFVOs) so as to provide the Professional
Engineer (PE) or an owner or operator self-certifying an SPCC Plan with
the flexibility to determine the scope of integrity testing that is
appropriate for containers that store AFVOs, based on compliance with
certain FDA regulations and other criteria relating to container
construction and configuration;

Amendment of the definition of “production facility” to be
consistent with the amended definition of “facility”;

Clarification that drilling and workover activities are not subject to
the provisions at  112.9;

Alternative compliance option for flow-through process vessels at oil
production facilities requiring general secondary containment and
additional oil spill prevention measures in lieu of the sized secondary
containment requirements that would apply to this equipment;

Exemption for certain intra-facility gathering lines subject to
requirements of the U.S. Department of Transportation’s (DOT’s)
pipeline regulations in 49 CFR parts 192 or 195;

Specific requirements for a flowline/intra-facility gathering line
maintenance program and an alternative compliance option of contingency
planning for flowlines and intra-facility gathering lines in lieu of the
general secondary containment requirements; and

Clarification of the definition of “permanently closed” as it
applies to oil production facilities and containers present at an oil
production facility.

The following provisions of the 2008 amendments will become effective
with technical corrections:

Exemption for underground oil storage tanks that supply emergency diesel
generators at nuclear power generation facilities, revising the
provision to state that the exemption applies “provided that such a
tank is subject to any Nuclear Regulatory Commission provision regarding
design and quality criteria, including but not limited to…”
(emphasis added);

Designation of a subset of qualified facilities (“Tier I qualified
facilities”) with a set of streamlined SPCC rule requirements. The
owner or operator of a Tier I qualified facility has the option to
complete a self-certified SPCC Plan template (found in Appendix G to 40
CFR part 112) in lieu of a full SPCC Plan. In §112.6 and the Appendix G
SPCC Plan template, technical corrections include clarifications and
corrections of typographical and formatting errors; and,

Amendment of the compliance date provision for new oil production
facilities, so that it applies to new oil production facilities that
begin operations after November 10, 2010.  This change is necessary to
align with the current compliance date for other facilities.

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

Additionally, after consideration of all relevant facts and public
comments, EPA is removing the following provisions which were
promulgated on December 5, 2008 from the SPCC regulation:

The specific exclusion of oil production facilities and farms from the
loading/unloading rack requirements at §112.7(h);

The definition of produced water container; the exemption for certain
produced water containers that do not contain oil as certified by a PE;
the alternative compliance option to sized secondary containment for
certain produced water storage containers that are not otherwise exempt;
and all rule text associated with the specific provisions for produced
water; and

The alternative criteria for an oil production facility to be eligible
to self-certify an SPCC Plan as a qualified facility.

Finally, EPA is clarifying that jurisdiction over facilities between DOT
and EPA is defined in a Memorandum of Understanding (MOU) between DOT
and EPA (36 FR 24080, November 24, 1971), and the joint memorandum
between DOT and EPA regarding “Jurisdiction over Breakout Tanks/Bulk
Storage Tanks (Containers) at Transportation-Related and
Non-Transportation-Related Facilities” (February 4, 2000).

This rulemaking marks the completion of the SPCC action which was
proposed on October 15, 2007 (72 FR 58378), and finalized on December 5,
2008 (73 FR 74236), and for which the Agency considered public comments
again in February 2009 (74 FR 5900, February 3, 2009). Hereafter,
comments addressing the December 5, 2008 amendments will be referred to
as “comments from the 2009 comment period.”

II.	Entities Potentially Affected by This Final Rule

Industry Sector	NAICS Code

Oil Production…………………………………………….…
211111

Farms………………………………………………………..
111, 112

Electric Utility Plants………………………………………..
2211

Petroleum Refining and Related Industries……………….	324

Chemical Manufacturing……………………………………	325

Food Manufacturing………………………………………	311, 312

Manufacturing Facilities Using and Storing Animal Fats and Vegetable
Oils……………………………………..

311, 325

Metal Manufacturing……………………………………….	331,
332

Other Manufacturing……………………………………….	31-33

Real Estate Rental and Leasing……………………………	531-533

Retail Trade…………………………………………………
441-446, 448,451-454

Contract Construction……………………………………….	23

Wholesale Trade……………………………………………	42

Other Commercial………………………………………….
492,541,551,561-562

Transportation……………………………………………….
481-488

Arts Entertainment & Recreation…………………………	711-713

Other Services (Except Public Administration)……………	811-813

Petroleum Bulk Stations and Terminals……………………	4247

Education…………………………………………………..	61

Hospitals & Other Health Care……………………………...	621,
622

Accommodation and Food Services………………………..	721, 722

Fuel Oil Dealers……………………………………………
45431

Gasoline stations…………………………………………..	4471

Information Finance and Insurance………………………...	51, 52

Mining……………………………………………………….
212

Warehousing and Storage…………………………………..	493

Religious Organizations…………………………………...	813110

Military Installations………………………………………..
928110

Pipelines…………………………………………………….
4861, 48691

Government………………………………………………...	92

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

III. Statutory Authority and Delegation of Authority

Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33 U.S.C.
1321(j)(1)(C), requires the President to issue regulations establishing
procedures, methods, equipment, and other requirements to prevent
discharges of oil to navigable waters or adjoining shorelines from
vessels and facilities and to contain such discharges. The President
delegated the authority to

regulate non-transportation-related onshore facilities to EPA in
Executive Order 11548 (35 FR 11677, July 22, 1970), which was superseded
by Executive Order 12777 (56 FR 54757, October 22, 1991). An MOU between
DOT and EPA (36 FR 24080, November 24, 1971) established the definitions
of transportation-related and non-transportation-related facilities. An
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59
FR 34102, July 1, 1994) re-delegated the responsibility to regulate
certain offshore facilities from DOI to EPA.

IV.	Background

The SPCC rule was originally promulgated on December 11, 1973 (38 FR
34164). On July 17, 2002, EPA published a final rule amending the SPCC
rule, formally known as the Oil Pollution Prevention regulation (40 CFR
part 112). The July 2002 rule amendments (67 FR 47042) included
revisions to the requirements for SPCC Plans and for Facility Response
Plans (FRPs). It also included new subparts outlining the requirements
for various classes of oil; revised the applicability of the regulation;
amended the requirements for completing SPCC Plans; and made other
modifications. After publication of these rule amendments, several
members of the regulated community filed legal challenges to certain
aspects. All of the issues raised in the litigation have now been
resolved; EPA published clarifications in the Federal Register to
several aspects of the amended rule (69 FR 29728, May 25, 2004). In a
separate Federal Register notice, the Agency published a final rule
announcing the vacatur of the July 17, 2002 definition of “navigable
waters” in 40 CFR part 112, and restoring it back to the regulatory
definition promulgated by EPA in 1973 (73 FR 71941, November 26, 2008).

Concerns were also raised about the ability to implement certain aspects
of the July 2002 rule amendments. As a result, EPA proposed additional
amendments to the SPCC rule in December 2005 and finalized them in
December 2006 to address a number of issues, including those pertaining
to certain “qualified” facilities, qualified oil-filled operational
equipment, motive power containers, mobile refuelers, removal of
provisions inapplicable to AFVOs, and the compliance date for farms (71
FR 77266, December 26, 2006). Additionally, EPA made available the SPCC
Guidance for Regional Inspectors in December 2005. This guidance
document is intended to assist regional inspectors, as well as members
of the regulated community, in reviewing the implementation of the SPCC
rule at a regulated facility. The guidance document is designed to
provide more detail about the rule’s applicability, to help clarify
the role of the inspector in reviewing and evaluating a facility owner
or operator’s compliance with the performance-based SPCC requirements,
and to provide a consistent national policy on several SPCC-related
issues. The guidance is available on the Agency’s website at
http://www.epa.gov/emergencies. EPA intends to revise this guidance to
address the regulatory amendments in this action and the December 2006
amendments (71 FR 77266, December 26, 2006).  EPA welcomes comments from
the regulated community and the public on the guidance document at any
time.  Instructions for submitting comments are provided on the EPA
Office of Emergency Management website.

  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 On December 5, 2008 (73 FR
74236), EPA again amended the SPCC rule to clarify certain provisions,
to tailor requirements to particular industry sectors, and to streamline
certain rule requirements. These requirements were to become effective
on February 3, 2009. However, the effective date of the December 2008
rulemaking was delayed for 60 days from February 3, 2009 to April 4,
2009, in accordance with the January 20, 2009 White House memorandum
entitled “Regulatory Review,” and the January 21, 2009 memorandum
from the Office of Management and Budget entitled “Implementation of
Memorandum Concerning Regulatory Review” (M-09-08, January 21, 2009
OMB memorandum). (These memorandums are available for review in the
docket for this rulemaking.) The Agency took this action to ensure that
the rule properly reflected consideration of all relevant facts.
Accordingly, EPA requested public comment on the delay of the effective
date and its duration, and further comment on the regulatory amendments
contained in the final rule amendments (74 FR 5900, February 3, 2009).
On April 1, 2009, the Agency further delayed the effective date of the
December 2008 rulemaking until January 14, 2010 (74 FR 14736). The
Agency took this action to allow sufficient time to address the comments
received on the February 3, 2009 notice. EPA is now promulgating several
limited revisions to the December 2008 amendments as a result of the
Agency’s review of comments and consideration of all relevant facts.

Section V of this notice describes EPA’s action on the December 2008
amendments. For a complete discussion of the comments received during
the 2009 comment period, see Comment and Response Document for 2008
Final SPCC Amendments, Comment Period Ending March 2009, a copy of which
is available in the docket for this rulemaking.

Furthermore, EPA has extended the dates for preparing or amending, and
implementing revised SPCC Plans in 40 CFR 112.3(a), (b), and (c) in a
rule published on June 19, 2009 (74 FR 29136). In that action, the
Agency also established dates for the owners and operators of farms to
prepare or amend their SPCC Plans, and implement those Plans.

V. 	This Action

Final Amendments Effective without Change

EPA has not modified the following provisions of the December 2008
amendments (73 FR 74236, December 5, 2008):

Exemptions for HMA and HMA containers, pesticide application equipment
and related mix containers, and heating oil containers at single-family
residences, including those located at farms;

Clarification that the definition of mobile refueler includes a nurse
tank at farms;

Amended definition of “facility” to clarify the existing flexibility
associated with describing a facility’s boundaries;

Amended facility diagram requirements to provide additional flexibility;

A new definition of “loading/unloading rack” to clarify the oil
transfer equipment subject to the provisions for facility tank car and
tank truck loading/unloading racks, as well as amended provisions for
this equipment;

Amended general secondary containment requirements to provide more
clarity;

Exemption of non-transportation-related tank trucks from the sized
secondary containment requirements;

Amended security requirements;

Amended integrity testing requirements to allow greater flexibility in
the use of industry standards;

Amended integrity testing requirements for containers that store AFVOs
and meet certain criteria;

Amended definition of “production facility”;

Clarification that drilling and workover activities are not subject to
the provisions at §112.9;

Exemption for certain intra-facility gathering lines at oil production
facilities from the SPCC requirements;

More prescriptive requirements for a flowline/intra-facility gathering
line maintenance program for all oil production facilities and an
alternative compliance option of contingency planning for flowlines and
intra-facility gathering lines in lieu of all secondary containment;

Alternative compliance option for flow-through process vessels at oil
production facilities to comply with the general secondary containment
requirements and additional oil spill prevention measures in lieu of the
sized secondary containment requirements;

Clarification of the definition of “permanently closed” as it
applies to an oil production facility; and

Technical corrections.

This preamble discusses each of these provisions, and any related
comments received during the 2009 comment period that raise substantive
policy issues, in more detail below.  For a complete discussion of the
comments received in 2009, see Comment and Response Document for 2008
Final SPCC Amendments, Comment Period Ending March 2009, a copy of which
is available in the docket for this rulemaking.

1.	Hot-Mix Asphalt (HMA)

In the December 2008 amendments, EPA exempted HMA and HMA containers
from SPCC rule applicability. HMA is a blend of asphalt cement (AC) and
aggregate material, such as stone, sand, or gravel, which is formed into
final paving products. All types of asphalt, including HMA, are
petroleum products.

EPA exempted HMA from SPCC rule applicability by adding a new paragraph
(8) under the general applicability section, §112.1(d), and modifying
§112.1(d)(2) so that the capacity of HMA containers is not counted
toward the facility’s oil storage capacity calculation. EPA took this
action based on the fact that this material is unlikely to flow as a
result of the entrained aggregate, such that there would be very few
circumstances, if any, in which a discharge of HMA would have the
potential to reach navigable waters or adjoining shorelines. This is
particularly of concern at facilities subject to the SPCC requirements
solely because of the presence of HMA. See Section V.A of the December
5, 2008 notice at 73 FR 74240 for more information about this amendment.

EPA received one comment that recommended that EPA also extend the
exemption to other products like paraffin wax, asphalt cement, certain
resins, and various animal fats, and suggested the exemption be based on
the unique “self-containing” characteristics of all these materials
and the low probability of a spill reaching navigable waters or
adjoining shorelines. The Agency disagrees with this comment. As EPA
discussed in the December 5, 2008 amendments, these materials, unlike
HMA, do have the potential to discharge in quantities that may be
harmful into navigable waters or adjoining shorelines, because they are
generally stored at elevated temperatures, and thus are capable of
flowing if there is a release from the container. Conversely, HMA is
unlikely to flow as a result of the entrained aggregate. The commenter
did not provide new or compelling data supporting their position.
Further, it should be noted that the SPCC rule only applies to
facilities that, due to their location, can reasonably be expected to
discharge oil to navigable waters or adjoining shorelines. In
determining whether there is a reasonable expectation of discharge, an
owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. If a facility owner or
operator determines that there is no reasonable expectation of a
discharge of oil to navigable waters or adjoining shorelines from every
single oil container at the facility (excluding exempt containers), then
the facility would not be subject to the rule’s requirements. However,
if the facility owner or operator determines that any oil container
(excluding exempt containers) may have a reasonable expectation of a
discharge of oil to navigable waters or adjoining shorelines, then the
facility is subject to the rule provisions.

Other comments generally supported the amendments to the exemption for
HMA and HMA containers. Based on this and review of all relevant facts,
the Agency is making no changes to this provision.

2.	Pesticide Application Equipment and Related Mix Containers

In the December 2008 amendments, EPA added a new paragraph (10) under
the general applicability section, §112.1(d), to exempt all pesticide
application equipment and related mix containers regardless of ownership
or where used when crop oil or adjuvant oil is added to the pesticide
formulation. EPA also modified §112.1(d)(2) so that the capacity of
pesticide application equipment and related mix containers is not
counted toward the facility’s oil storage capacity calculation.
Pesticide application equipment includes ground boom applicators,
airblast sprayers, and specialty aircraft containers/equipment that are
used to apply measured quantities of pesticides to crops and/or soil.
Related mix containers are those used to mix pesticides with water and,
as needed, adjuvant oils, just prior to loading into the application
equipment. EPA adopted this exemption because this type of pesticide use
and related mix containers are already subject to regulation under the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as codified
in 40 CFR part 165, to assure the safe use (including discharge), reuse,
storage, and disposal of pesticide containers. Containers (55 U.S.
gallons or greater in capacity) storing oil prior to mixing it with a
pesticide, or containers used to store pesticides that contain oil
(after mixing occurs), are considered bulk storage containers and are
not exempt under the SPCC rule. See Section V.B of the December 5, 2008
notice at 73 FR 74240 for more information about this amendment.

Comments generally supported the exemption for pesticide application
equipment and related mix containers. Based on this and review of all
relevant facts, the Agency is making no change to this provision.

3.	Applicability of Mobile Refueler Requirements to Farm Nurse Tanks

In Section V.B. of the preamble to the December 2008 amendments (73 FR
74241, December 5, 2008), EPA clarified that the definition of mobile
refueler, as promulgated in the December 2006 amendments to the SPCC
rule (71 FR 77266, December 26, 2006), includes a nurse tank, which is a
mobile/portable container used at farms to store and transport fuel for
transfers to or from farm equipment (such as tractors and combines) to
other bulk storage containers (such as containers used to provide fuel
to wellhead/relift pumps) at the farm. A nurse tank is often mounted on
a trailer for transport around the farm, and thus its function is
consistent with that of a mobile refueler. A nurse tank, like other
types of mobile refuelers, is exempt from the sized secondary
containment requirements at §§112.8(c)(2) and 112.12(c)(2), but is
still subject to the general secondary containment requirements at
§112.7(c).

Comments generally supported the clarification regarding the
applicability of mobile refueler requirements to farm nurse tanks. Based
on this and review of all relevant facts, the Agency is making no change
to this clarification.

4.	Residential Heating Oil Containers

	In the December 2008 amendments, EPA added a new paragraph (9) under
the general applicability section, §112.1(d), to exempt from SPCC
applicability containers that are used to store oil for the sole purpose
of heating single-family residences (including a residence at a farm).
EPA also modified §112.1(d)(2) so that the capacity of single-family
residential heating oil containers is not counted toward facility
aggregate oil storage capacity. Thus, the owner or operator is not
required to count any residential heating oil container (i.e., those at
non-commercial buildings) as part of the facility’s aggregate storage
capacity for the purpose of determining SPCC applicability, and no SPCC
requirements will apply to these exempt containers. The SPCC
requirements continue to apply, however, to oil containers used to heat
other non-residential buildings within a facility, because the exemption
covers only residential heating oil containers at single family
residences. See Section V.C of the December 5, 2008 notice at 73 FR
74243 for more information about this amendment.

	Comments generally supported the amendments to the exemption for
residential heating oil containers.  The Agency did not intend for the
presence of heating oil containers at a single-family residence to, by
itself, trigger SPCC applicability. Based on this and review of all
relevant facts, the Agency is making no change to this provision.

5.	Definition of Facility

In the December 2008 amendments, EPA amended the definition of
“facility,” as found in §112.2. (EPA defined both “facility”
and “production facility” at §112.2 in the July 2002 amendments to
the SPCC rule (67 FR 47042, July 17, 2002).) EPA modified the definition
of “facility” in three ways: (1) to clarify that this definition
alone governs the applicability of 40 CFR part 112; (2) to clarify that
containers can be aggregated or disaggregated (i.e., counted
separately), based on various factors in defining the “facility” (in
other words, the owner or operator has the discretion to identify which
contiguous or non-contiguous buildings, properties, parcels, leases,
structures, installations, pipes, or pipelines make up the facility);
and (3) to add the qualifier “oil” before the term “waste
treatment.”

EPA maintains that under this provision, the owner or operator defines
the boundaries of his facility, except as noted below. A facility may or
may not be subject to the SPCC rule depending on how the facility owner
or operator aggregates buildings, structures or equipment and associated
storage or type of activity.  EPA recognizes that this provision
clarifies that a facility owner/operator may determine that he is no
longer subject to the SPCC requirements. However, an owner or operator
may not characterize a facility so as to simply avoid applicability of
the rule (for example, defining separate facilities around oil storage
containers that are located side-by-side or within close proximity, and
are used for the same purpose). See Section V.D of the December 5, 2008
notice at 73 FR 74244 for more information about this amendment.

Comments generally supported the amendments to the definition of
“facility.” Based on this and review of all relevant facts, the
Agency is making no change to this provision.

6.	Facility Diagram

In the December 2008 amendments, EPA revised the requirement that the
facility diagram include the location and contents of each container to
provide additional flexibility. EPA amended §112.7(a)(3) to clarify
that the facility diagram must include all fixed containers (that is,
those containers that are not mobile or portable). For any mobile or
portable containers (such as drums or totes), a facility owner or
operator must mark the storage area on the facility diagram for these
containers.  For the purposes of this provision, “storage area”
means the location of their out-of-service containers or designated
storage area, primary storage area, or areas where mobile or portable
containers are most frequently located. The facility owner or operator
may mark the number of containers, contents and capacity of each
container either on the facility diagram or in a separate description in
the SPCC Plan. If the total number of mobile or portable containers
changes, the owner or operator need only include an estimate in the Plan
of the number of mobile or portable containers, the anticipated
contents, and capacities of the mobile or portable containers maintained
at the facility in the Plan.

EPA also required that certain intra-facility piping (i.e., gathering
lines) exempted from the SPCC requirements in the December 2008 action
be identified on the facility diagram and marked as “exempt.” This
will help facility and EPA personnel define the jurisdictional
boundaries at the facility and provide emergency response personnel with
information that can be used to identify hazards during a spill response
activity. However, EPA has not required that all containers exempted
from the rule be marked on the facility diagram because in many cases,
it would be impracticable. For example, the mobility of motive power
containers and mobile/portable containers with a capacity of less than
55 U.S. gallons makes them difficult to accurately represent on a
facility diagram. See Section V.E of the December 5, 2008 notice at 73
FR 74246 for more information about this amendment.

Comments generally supported the amendments to the facility diagram
provision. One commenter claimed that his facility diagrams identify
underground storage tanks, but do not label them as exempt from the SPCC
requirements. The comment argued that marking them as “exempt” would
be an unnecessary expense. The requirement to identify exempt USTs was
finalized in July 2002 (67 FR 47042, July 17, 2002) and so antedates the
December 2008 amendments; thus the comment is outside the scope of this
rulemaking. However, in response, we would note that the facility
diagram can be supplemented with a table or log that indicates which
USTs are exempt from the SPCC requirements. Based on this and review of
all relevant facts, the Agency is making no change to this provision.

7.	Loading/Unloading Racks

In the December 2008 amendments, EPA finalized a definition for the term
“loading/unloading rack,” which governs whether a facility’s oil
transfer equipment and areas are subject to §112.7(h). Under this
provision, the requirements described at §112.7(h) only apply to oil
transfer areas of a regulated facility where a loading/unloading rack,
as defined in §112.2, is located.  EPA modified the definition to
provide more clarity, and to indicate that a loading/unloading arm is an
essential component of a loading/unloading rack. Other components that
may be found at a loading or unloading rack are described in the
definition. Equipment present at a loading/unloading area where a pipe
stand connects to a tank car or tank truck via a flexible hose, which is
not equipped with a loading or unloading arm, is not considered a
loading/unloading rack as defined by the December 2008 amendments.

EPA also changed all references from loading/unloading “area” to
loading/unloading “rack,” including modifications to the language in
§112.7(h)(1), and corrected the word “break” to “brake” in
§112.7(h)(2). Finally, EPA clarified that §112.7(h) applies to a
loading/unloading rack associated with a container that is exempted from
the rule, such as underground storage tanks (USTs) that are subject to
all of the technical requirements of 40 CFR part 280 or a state program
approved under part 281. Additionally, EPA clarified that transfer areas
(equipped with dispensers or other transfer equipment) that are
associated with exempted USTs, at an otherwise regulated SPCC facility,
are subject to the requirements of §112.7(c). See Section V.F of the
December 5, 2008 notice at 73 FR 74248 for more information about this
amendment.

EPA agrees with the comment that EPA’s definition of
“loading/unloading rack” does not apply to a flexible hose used to
load and/or unload oil from a tanker truck or railcar unless the
flexible hose is connected to a loading/unloading arm. The Agency does
not intend this definition to include areas where loading or unloading
is achieved using only flexible hoses. However, the presence of flexible
hoses on oil transfer equipment does not always indicate that the
equipment is exempt from the definition of loading/unloading rack
because some top and bottom loading/unloading racks consist of a
combination of steel loading arms connected by flexible hoses.

Comments generally supported the “loading/unloading rack” definition
and amendments to the requirements for a “loading/unloading rack.”
Based on this and review of all relevant facts, the Agency is making no
change to these provisions.

 8.	General Secondary Containment

	In the December 2008 amendments, EPA amended the general secondary
containment requirement at §112.7(c) in three ways:

By adding text regarding the method, design and capacity of secondary
containment— to make it clear that the scope of the general secondary
containment requirements takes into consideration the typical failure
mode, and most likely quantity of oil that would be discharged,
consistent with EPA guidance (SPCC Guidance for Regional Inspectors);

By specifically referencing both active and passive measures of
secondary containment to make it clear that general containment
requirements allows for the use of both active and passive secondary
containment measures to prevent a discharge to navigable waters or
adjoining shorelines. Active containment measures are those that require
deployment or other specific action by an operator. These measures may
be deployed either before an activity involving the handling of oil
starts, or in reaction to a discharge, as long as the active measure is
designed to prevent an oil discharge from reaching navigable waters or
adjoining shorelines. Passive measures are permanent installations and
do not require deployment or action by the owner or operator. The design
and capacity flexibility described in paragraph §112.7(c) is
specifically for equipment and containers subject to this paragraph and
not for other secondary containment provisions of this rule; and.

By including the following additional examples of prevention systems for
onshore facilities: drip pans, sumps, and collection systems. Drip pans
are typically used to isolate and contain small drips or leaks until the
source of the leak is repaired. They are commonly used with product
dispensing containers (such as drums), when uncoupling hoses after bulk
transfer operations, and for pumps, valves, and fittings. Sumps and
collection systems generally involve a permanent pit or reservoir
connected to troughs/trenches that collect oil. By expanding the list of
examples of secondary containment methods/prevention systems found in
§112.7(c)(1), EPA intended to increase the clarity and better represent
current prevention practices. EPA emphasizes that the list of
containment methods/prevention systems are examples only; other
containment methods may be used, consistent with good engineering
practice. See Section V.H of the December 5, 2008 notice at 73 FR 74261
for more information about this amendment.

As EPA discussed in the December 5, 2008 amendments, the Plan preparer
should include enough detail in the SPCC Plan to describe the efficacy
of the measures used to comply with the general secondary containment
requirements (see the SPCC Guidance for Regional Inspectors, Chapter 4).
While EPA does not require that calculations be kept in the Plan, it
recommends the facility owner or operator maintain them such that if
questions arise during the inspection, the calculations which serve as
the basis for the capacity of the secondary containment system will be
readily available for review.

Comments generally supported the amendments to the general secondary
containment requirements. Based on this and review of all relevant
facts, the Agency is making no change to these provisions.

9.	General Secondary Containment for Non-Transportation-Related Tank
Trucks

In the December 2008 amendments, EPA extended the exemption from the
sized secondary containment requirements provided to mobile refuelers in
the December 2006 amendments (71 FR 77266, December 26, 2006) to
non-transportation-related tank trucks at a facility subject to the SPCC
rule. Other non-transportation-related tanker trucks may be transferring
non-fuel oils (i.e., transformer oils, lubrication oils, or certain
AFVOs) and operate similarly to mobile refuelers; therefore, they may
not be able to comply with the sized secondary containment requirements.
Specifically, EPA amended §§112.6(a)(3)(ii), 112.8(c)(2),
112.8(c)(11), 112.12(c)(2), and 112.12(c)(11) to include the phrase
“except mobile refuelers and other non-transportation-related tank
trucks.” Such non-transportation-related tank trucks include those
used to store and transport fuel, crude oil, condensate, non-petroleum,
or other oils for transfer to or from bulk storage containers; for
example, a truck used to refill oil-filled equipment at an electrical
substation or a pump truck at an oil production facility. Under this
approach, the general secondary containment requirements at §112.7(c)
still apply. See Section V.I of the December 5, 2008 notice at 73 FR
74262 for more information about this amendment.

EPA agrees with comments supporting the exemption from the sized
secondary containment requirements for non-transportation-related tank
trucks at a facility subject to the SPCC rule. One comment noted that
the exemption from sized secondary containment should be rescinded,
given the use of truck and skid mounted tanks as storage containers at
temporary sites and the high risks associated with these tanks.  EPA
disagrees with the comment. As stated in the preamble to the December 5,
2008 amendments, the Agency concluded that it is generally not
practicable to provide sized secondary containment for
non-transportation-related tank trucks because they are moving from
location to location within a facility. A non-transportation-related
tank truck that only operates in a single or fixed location within the
facility (i.e., it does not move within the facility for purposes of
transferring oil) is not eligible for this provision and would still be
subject to the sized secondary containment requirement.  Based on this
and review of all relevant facts, the Agency is making no change to this
provision.

10.	Security

In the December 2008 amendments, EPA amended the facility security
requirements at §112.7(g) to be performance-based and allow an owner or
operator of a facility to tailor its security measures to the
facility’s specific characteristics and location. This provision
extended the streamlined security requirements that EPA provided to
qualified facilities in the December 2006 SPCC rule amendments (71 FR
77266, December 26, 2006) to all facilities subject to the security
requirements.

Specifically, EPA modified the security requirements at §112.7(g) to
allow an owner or operator to design the security arrangements at the
facility to address the specific circumstances that apply. This
provision allows an owner or operator to describe in his SPCC Plan how
he will:

Secure and control access to all oil handling, processing and storage
areas;

Secure master flow and drain valves;

Prevent unauthorized access to starter controls on oil pumps;

Secure out-of-service and loading/unloading connections of oil
pipelines; and

Address the appropriateness of security lighting to both prevent acts of
vandalism and assist in the discovery of oil discharges.

A facility owner or operator is required to document in the SPCC Plan
how these security measures are implemented. These requirements replace
the more prescriptive fencing and other requirements, previously found
in §112.7(g)(1) through (5). Because the revised requirements at
§112.7(g) apply to all facilities (excluding oil production
facilities), EPA removed the security requirements previously found at
§112.6(c)(3) for qualified facilities; the provision would be
redundant. See Section V.J of the December 5, 2008 notice at 73 FR 74263
for more information about this amendment.

Comments generally supported the amendments to the provision for
security requirements. Based on this and review of all relevant facts,
the Agency is making no change to this provision.

11.	Integrity Testing

In the December 2008 amendments, EPA amended the requirements at
§§112.8(c)(6) and 112.12(c)(6) to provide flexibility in complying
with the bulk storage container integrity testing requirements.
Specifically, EPA modified the provision to allow an owner or operator
to consult and rely on industry standards to determine the appropriate
qualifications for tank inspectors/testing personnel and the type and
frequency of integrity testing required for a particular container size
and configuration. Thus, EPA extended the streamlined bulk storage
container integrity testing requirement that EPA provided to qualified
facilities in the December 2006 SPCC rule amendments (71 FR 77266,
December 26, 2006) to all facilities subject to the integrity testing
provision.

Specifically, EPA replaced the previous regulatory requirements at
§§112.8(c)(6) and 112.12(c)(6) with the requirement for a facility
owner or operator to:

Test/inspect each aboveground container for integrity on a regular
schedule and whenever material repairs are made.

Determine, in accordance with industry standards, the appropriate
qualifications of personnel performing tests and inspections and the
frequency and type of testing and inspections, which take into account
container size, configuration, and design.

An owner or operator is still required to keep comparison records
(records of inspections and tests kept under usual and customary
business practices will suffice) and to inspect the container’s
supports and foundations. The owner or operator must also conduct
frequent inspection of the outside of the container for signs of
deterioration, discharges, or accumulation of oil inside diked areas.
Because the revised requirements at §§112.8(c)(6) and 112.12(c)(6)
apply to all facilities (excluding oil production facilities), EPA
removed the integrity testing requirements previously found at
§112.6(c)(4) for qualified facilities. See Section V.K of the December
5, 2008 notice at 73 FR 74264 for more information about this amendment.

EPA agrees with the comments supporting the provision for integrity
testing requirements.  However, several comments generally opposed these
amendments, and one comment questioned the need for more flexibility
with regard to the integrity testing requirements. EPA recognizes that
certain containers do not have applicable industry standards and notes
that the rule already provides flexibility to integrity testing in that
the owner or operator can rely on a PE to provide an environmentally
equivalent method of integrity testing in  §112.7(a)(2). Nonetheless,
the December 2008 amendments address broader concerns with the integrity
testing requirements by revising the rule text under §§112.8(c)(6) and
112.12(c)(6). No new or compelling information or data was provided by
comments that supported changing EPA’s position. Based on this and
review of all relevant facts, the Agency is making no change to this
provision.

12.	Integrity Testing Requirements for Animal Fats and Vegetable Oils

In the December 2008 amendments, EPA differentiated the integrity
testing requirements at §112.12(c)(6) for an owner or operator of a
facility that handles certain types of AFVOs.

Specifically, EPA provided the PE or an owner or operator
self-certifying an SPCC Plan with the flexibility to use a visual
inspection program for integrity testing for containers that store AFVOs
and that meet certain criteria identified in §112.12(c)(6)(ii). This
flexibility applies to those bulk storage containers that are subject to
the applicable sections of the Food and Drug Administration (FDA)
regulation 21 CFR part 110, Current Good Manufacturing Practice in
Manufacturing, Packing or Holding Human Food, as well as meet the
following additional criteria: (1) the containers are elevated; (2) the
containers are made from austenitic stainless steel; (3) the containers
have no external insulation; and (4) the containers are shop-built. That
is, an owner or operator with containers meeting these criteria can use
visual inspection of these containers equivalent to industry standards,
in lieu of the revised integrity testing requirements found at
§112.12(c)(6)(i), without having to document the reasons for using an
environmentally equivalent measure in accordance with §112.7(a)(2). The
owner or operator is required to document the procedures for inspections
and testing in the SPCC Plan, including those for AFVO bulk storage
containers that are eligible for the differentiated requirements
described in this provision.

EPA does not require that an owner or operator use this alternative
compliance option. This alternative provides additional flexibility in
meeting the provisions set forth in §112.12(c)(6) to address
stakeholder concerns. EPA recognizes that certain types of containers do
not have applicable industry standards. The December 2008 amendments
revised the SPCC rule to provide an environmentally equivalent approach
to comply with the integrity testing requirements for AFVO containers or
have a PE provide an environmentally equivalent method of integrity
testing in accordance with §112.7(a)(2). See Section V.K of the
December 5, 2008 notice at 73 FR 74264 for more information about this
amendment.

EPA agrees with comments supporting the differentiated integrity testing
requirements for an owner or operator of a facility that handles certain
types of AFVOs.  One comment requested greater flexibility in
determining the appropriate integrity testing measures for bulk AFVO
storage containers, including an extension of the inspection frequency
for tanks storing AFVO. The owner or operator can identify the
appropriate integrity testing measures for bulk AFVO storage containers
following either §112.12(c)(6)(i) or §112.12(c)(6)(ii). Additional
flexibility may be achieved when a PE provides an environmentally
equivalent method of integrity testing in accordance with §112.7(a)(2).
The SPCC rule requires that inspections of AFVO bulk storage containers
be conducted on a regular schedule, but does not otherwise specify an
inspection frequency for these containers. The owner or operator can
identify the appropriate inspection frequency for the AFVO containers
and document the inspection frequency in the SPCC Plan. No new or
compelling information or data was provided by comments that would cause
the Agency to change its position. Thus, based on this and review of all
relevant facts, the Agency is making no change to this provision.

13.	Oil Production Facilities

Since its original promulgation in 1973, the SPCC rule has included
differentiated requirements for oil production facilities (§112.9), as
compared to other types of facilities (§§112.8, 112.10, 112.11, and
112.12). Based on issues presented by the regulated community, in the
December 2008 amendments, EPA adopted certain revisions that further
streamline, tailor or clarify the SPCC requirements for oil production
facilities (see Section V.M of the December 5, 2008 notice at 73 FR
74270). EPA has decided not to modify the following provisions: amended
definition of “production facility”; clarification that drilling and
workover activities are not subject to the provisions at §112.9;
exemption from the SPCC requirements for certain intra-facility
gathering lines subject to the DOT pipeline regulations in 49 CFR parts
192 or 195; specific requirements for a flowline/intra-facility
gathering line maintenance program and an alternative compliance option
of contingency planning for flowlines and intra-facility gathering lines
at oil production facilities in lieu of secondary containment
requirements; an alternative compliance option for flow-through process
vessels at oil production facilities that requires general secondary
containment and additional oil spill prevention measures in lieu of the
sized secondary containment requirements; and clarification of the
definition of “permanently closed” as it applies to an oil
production facility.

a. 	Definition of Production Facility

Consistent with the revisions to the definition of “facility” (as
described in Section V.D of the December 2008 amendments (73 FR 74236)),
EPA also modified the definition of “production facility.” A
“production facility” is a type of “facility” as defined in
§112.2. With the December 2008 amendments, EPA added a sentence at the
end of the definition to clarify that while only the definition of
“facility” governs the overall applicability of 40 CFR part 112, the
definition of “production facility” is used to determine which
sections of the rule may apply at a particular facility. (The sections
for administrative and general rule requirements continue to apply at
all facilities under 40 CFR part 112.) This change to the definition of
production facility addresses concerns raised during litigation
challenging the July 2002 rule amendments and discussed in the May 25,
2004 Federal Register notice (69 FR 29728). EPA also modified the phrase
“and located in a single geographical oil or gas field operated by a
single operator” to clarify that a production facility “is located
in an oil or gas field.” This is consistent with the revisions to the
definition of “facility” that emphasize the flexibility in how a
facility owner or operator can determine the boundaries of a facility.
See Section V.M.1 of the December 5, 2008 notice at 73 FR 74270 for more
information about this amendment.

EPA agrees with comments supporting the revisions to the definition of
“production facility.” One comment, however, suggested that the
Agency refer specifically to petroleum oil in the definition, to clarify
that the term does not apply to vegetable oil production facilities.
EPA disagrees with the comment; the addition of the term “petroleum”
is unnecessary because the definition itself makes clear that the type
of facilities addressed under “production facility” are those
involved with petroleum crude oil production and not any other type of
oil production, such as AFVO production. EPA’s intent has always been
that the definition of production facility addresses petroleum crude oil
production, extraction, recovery, lifting, stabilization, separation or
treatment and associated storage or measurement. For example, the
definition includes terms associated with petroleum crude oil
production, such as gathering lines and flowlines, which are associated
with upstream petroleum crude oil/gas production, not AFVO production or
processing facilities. Furthermore, the definition specifies that
certain structures, piping, or equipment be located in an oil or gas
field. The term “oil or gas field” is used exclusively in upstream
crude oil and gas production, not in AFVO production; therefore the
definition of production facility does not apply to AFVO production
facilities.

Based on this and review of all relevant facts, the Agency is making no
change to this provision.

b.	Modifications to §112.9 for Drilling and Workover Facilities

To clarify that drilling and workover activities are not subject to the
provisions at §112.9, in the December 2008 amendments, EPA revised the
title of §112.9 to read “Spill Prevention, Control, and
Countermeasure Plan requirements for onshore oil production facilities
(excluding drilling and workover facilities).” EPA also amended the
introductory sentence of the section accordingly. See Section V.M.2 of
the December 5, 2008 notice at 73 FR 74272 for more information about
this amendment.

Comments generally supported the amendments to §112.9 for drilling and
workover facilities. Based on this and review of all relevant facts, the
Agency is making no change to this provision.

c.	Exemption for Certain Intra-Facility Gathering Lines

In the December 2008 amendments, EPA provided an exemption for
intra-facility gathering lines subject to DOT requirements at 49 CFR
parts 192 (Transportation of Natural and Other Gas by Pipeline) or 195
(Transportation of Hazardous Liquids by Pipeline). EPA recognizes that
the DOT requirements for pipelines may be similar in scope to the SPCC
regulations, so that compliance with certain DOT requirements is
considered environmentally equivalent to certain SPCC requirements. For
example, DOT has the statutory authority over onshore gas or hazardous
liquid gathering lines in a non-rural area, as well as “regulated
rural gathering lines” (including certain gathering lines in or within
one-quarter mile of environmentally sensitive rural areas, defined as
“unusually sensitive areas”), and certain low-stress pipelines
transporting hazardous liquids. While many gathering lines are under
DOT’s statutory authority, only a subset of them is subject to the DOT
regulatory requirements.

EPA recognizes that gathering lines can be outside the Agency’s
jurisdiction because they “transport” oil outside of an oil
production facility. EPA has jurisdiction over
non-transportation-related facilities, which includes pipelines used to
move oil within a facility. Any inter-facility pipeline, including a
gathering line, that transports oil between facilities or from a
facility to a vessel, or from a facility to a transportation-related
pipeline facility, such as a transmission line, or a pipeline breakout
tank, when used for this purpose, is considered transportation-related
and is therefore outside EPA’s jurisdiction and not subject to the
SPCC rule. However, the definition of “facility,” as it applies to
the SPCC rule is flexible. Depending upon how an owner/operator defines
his facility under the SPCC rule, an oil production facility may also
include intra-facility gathering lines.

While gathering lines within the SPCC facility boundaries are
intra-facility piping, EPA maintained the term intra-facility gathering
lines because it is a term that is well recognized within the production
sector. For those intra-facility gathering lines that are regulated by
DOT under 49 CFR part 192 or 195, EPA exempted them from the SPCC
requirements. In other words, the exemption is for intra-facility
gathering lines present at a facility where the piping otherwise is
subject to both EPA and DOT jurisdiction and regulations. EPA’s focus
with the SPCC rule is the regulation of oil storage and handling at
facilities engaged in activities related to drilling, producing,
gathering, processing, refining, storing, transferring, distributing and
using oil, while DOT’s focus is to regulate transportation-related
pipelines.  Although EPA has jurisdiction over these lines, EPA has
concluded that it is appropriate to defer to DOT’s regulations, when
applicable to intra-facility gathering lines, in lieu of EPA’s
requirements. At the same time, the Regional Administrator has the
option under §112.1(f) to require owners and operators of facilities,
including those with exempt intra-facility gathering lines, to prepare
and implement an SPCC Plan or any applicable part, if a determination is
made that it is necessary to prevent a discharge of oil into navigable
waters or adjoining shorelines.

Only intra-facility gathering lines that are subject to these DOT
regulations are eligible for the exemption. Intra-facility gathering
lines located at a facility that are not subject to the regulatory
requirements at 49 CFR parts 192 or 195 remain subject to the
requirements at 40 CFR part 112. Other non-transportation-related
equipment and piping at an oil production facility (such as flowlines),
remain subject to the SPCC requirements. In addition, this exemption
requires that owners or operators of a facility identify and mark as
“exempt” on the facility diagram the location of exempt piping. This
requirement will assist facility and EPA personnel in defining the
boundaries of EPA and DOT jurisdiction and provide response personnel
with information used to identify potential hazards during a spill
response activity. See Section V.M.4.a of the December 5, 2008 notice at
73 FR 74273 for more information about this amendment.

Comments generally supported the exemption for intra-facility gathering
lines subject to the regulatory requirements at 49 CFR parts 192 or 195.
Based on this and review of all relevant facts, the Agency is making no
change to this provision.

d.	Flowlines and Intra-facility Gathering Lines

EPA is making no changes to the following provisions related to
flowlines and intra-facility gathering lines.

i. 	Compliance Alternative in Lieu of Secondary Containment for
Flowlines and Intra-facility Gathering Lines

EPA has determined that secondary containment is, in most cases,
impracticable for flowlines and intra-facility gathering lines.
Therefore, in the December 2008 amendments, the Agency revised
§112.7(c) to provide an optional compliance alternative consisting of
contingency planning and a written commitment of manpower, equipment,
and materials in lieu of the general secondary containment requirements
for flowlines and intra-facility gathering lines that are subject to the
SPCC regulation. The Agency tailored the requirements in an effort to
provide additional compliance options and enhance environmental
protection. See Section V.M.4.b of the December 5, 2008 notice at 73 FR
74274 for more information about this amendment.

EPA agrees with comments supporting the provision of an alternative
option to the secondary containment requirements for flowlines and
intra-facility gathering lines at an oil production facility. A few
comments specifically opposed any reduction in secondary containment
requirements, but no new or compelling information or data was provided
by comments that supported revising the requirements. While EPA
understands that flowlines and intra-facility gathering lines are
typically a source of discharges, secondary containment is often
impracticable. In the December 2008 amendments, EPA provided an
alternative compliance option to secondary containment which combines
the development of a contingency plan and a written commitment of
manpower, equipment, and materials to respond to discharges from
flowlines and intra-facility gathering lines. In addition, EPA has also
established requirements to add specificity to the flowline and
intra-facility gathering line maintenance program.  Finally, if this
method of spill prevention does not accomplish the goal of protecting
navigable waters or adjoining shorelines, under §112.1(f) the RA may
request that the facility amend the SPCC Plan and provide secondary
containment for this piping.

Based on this and review of all relevant facts, the Agency is making no
change to this provision.

ii.	Contingency Plan for Flowlines and Intra-facility Gathering Lines

In the December 2008 amendments, EPA revised §§112.7(c) and
112.9(d)(3) to provide a compliance alternative to the general secondary
containment requirements under §112.7(c) for flowlines and
intra-facility gathering lines at an oil production facility.
Specifically, in lieu of general secondary containment, a facility owner
or operator may opt to develop and implement an oil spill contingency
plan in accordance with 40 CFR part 109 (Criteria for State, Local and
Regional Oil Removal Contingency Plans) and prepare a written commitment
of manpower, equipment, and materials required to expeditiously control
and remove any quantity of oil discharged that may be harmful, without
having to make an impracticability determination for each piece of
piping. The Agency amended this provision in an effort to provide
additional compliance options and enhance environmental protection. The
use of a contingency plan does not relieve the owner or operator of
liability associated with an oil discharge to navigable waters or
adjoining shorelines that violates the provisions of Section 311(b)(3)
of the CWA, 33 U.S.C. 1321(b)(3). EPA also amended §112.7(a) to make it
clear that the contingency plan provisions under §112.9(d)(3) are not
subject to the environmental equivalence provision. See Section V.M.4.c
of the December 5, 2008 notice at 73 FR 74275 for more information about
this amendment.

EPA agrees with comments supporting the provision to require an oil
spill contingency plan in lieu of general secondary containment.
However, one comment suggested that a contingency plan should not be
used in lieu of secondary containment, because the purpose of the SPCC
rule is to prevent spills, not to clean them up after they occur. While
EPA understands that although these lines can be the source of
discharges, the Agency also recognizes that secondary containment is
often impracticable.  EPA has provided an alternative compliance option
to secondary containment which combines the development of a contingency
plan and a written commitment of manpower, equipment, and materials to
respond to discharges. In addition, EPA has also established
requirements to add specificity to the flowline and intra-facility
gathering line maintenance program. These additional measures are
intended to enhance the primary integrity of the flowlines and
intra-facility gathering lines to prevent the discharges of oil in the
first place, and thus, EPA is not solely relying on a contingency plan.
Finally, if this method of spill prevention does not accomplish the goal
of protecting navigable waters or adjoining shorelines, then under
§112.1(f), the RA has the authority to request that the facility amend
the SPCC Plan and provide secondary containment for this piping.

Another comment suggested that the burden for this alternative option is
excessive.  EPA disagrees. First, as already noted, this alternative
provision for flowlines and intra-facility gathering lines is optional;
some facilities may choose to provide secondary containment for these
lines. Flowlines and intra-facility gathering lines can be a source of
discharges and when secondary containment is not provided then it is
appropriate for the facility to have a contingency plan and a written
commitment of manpower, equipment, and materials in place to respond to
these discharges. Additionally, by removing the need to determine
impracticability, the Agency has reduced the burden to allow for
contingency planning for these flowlines and intra-facility gathering
lines. Therefore, EPA has concluded that the requirements are not
excessive. Furthermore, by removing the requirement that a PE make the
determination of impracticability (§112.7(d)), the cost of preparing a
contingency plan should decrease.

Another comment suggested that in lieu of the secondary containment
requirements for flowlines and intra-facility gathering lines, EPA
should require annual physical inspections of the lines and installation
of isolation valves on the ends of lines.  EPA agrees that some form of
enhanced inspection program is appropriate to assure the primary
integrity of the flowlines and intra-facility gathering lines and to
implement a contingency plan. However, EPA has concluded that inspection
frequency is a site-specific determination and setting a prescriptive
(“one-size fits all”) timeframe is inappropriate.  Although the
Agency agrees that the installation of isolation valves may be
appropriate in some cases, it did not include this as a requirement
because it may be impracticable for some oil production facilities.
However, an owner or operator may choose to install isolation valves as
an environmentally equivalent measure to comply with the
flowline/intra-facility gathering line maintenance requirements in
accordance with §112.7(a)(2).

No new or compelling information or data was provided by comments that
support modification of the provision. Based on this and review of all
relevant facts, the Agency is making no change to this provision.

iii.	Requirements for a Flowline and Intra-Facility Gathering Line
Maintenance Program

In the December 2008 amendments, EPA revised the requirement for an
owner or operator to prepare and implement a written flowline and
intra-facility gathering line maintenance program under §112.9(d)(4) to
add specificity to the existing provision. This provision specifies that
the requirements apply to non-transportation-related intra-facility
gathering lines, as well as to flowlines at an oil production facility.
Intra-facility gathering lines pose the same potential for discharge as
flowlines. EPA never intended to regulate the two types of piping
differently. In response to industry concerns, EPA has established
requirements to add specificity to the existing flowline/intra-facility
gathering line maintenance program provision, because there are no
industry standards for maintenance of this equipment. The Agency
believes that an effective flowline maintenance program is necessary to
detect a discharge in a timely manner so that the oil discharge response
operations described in the contingency plan may be implemented
effectively. Additionally, eliminating the requirement for secondary
containment necessitates more prescriptive requirements for discharge
prevention to ensure the integrity of the primary containment of the
pipe itself. Finally, EPA believes that it is appropriate to establish a
minimum set of requirements for a flowline and intra-facility gathering
line maintenance program in order to facilitate consistent compliance.
Under the amended provisions, a maintenance program must address
procedures to:

Ensure that such flowlines and intra-facility gathering lines and
associated valves and equipment are compatible with the type of
production fluids, their potential corrosivity, volume, and pressure,
and other conditions expected in the operational environment.

Visually inspect and/or test flowlines and intra-facility gathering
lines and associated appurtenances on a periodic and regular schedule
for leaks, oil discharges, corrosion, or other conditions that could
lead to a discharge as described in §112.1(b). The frequency and type
of testing must allow for the implementation of a contingency plan, as
described under part 109 of this chapter, if there is no secondary
containment.

Take corrective action or make repairs to any flowlines and
intra-facility gathering lines and associated appurtenances as indicated
by regularly scheduled visual inspections, tests, or evidence of a
discharge.

Promptly remove or initiate actions to stabilize and remediate any
accumulations of oil discharges associated with flowlines,
intra-facility gathering lines, and associated appurtenances.

The Agency concludes that if the requirement for general secondary
containment for these lines is eliminated, then some minimal
prescriptive requirements for discharge prevention to ensure the
integrity of the primary containment of the pipe itself are appropriate.
 However, the facility owner or operator may deviate from the flowline
and intra-facility gathering line maintenance program requirements if an
environmentally equivalent alternative measure is implemented in
accordance with §112.7(a)(2). EPA recognizes that other Federal or
state requirements may be environmentally equivalent to certain SPCC
requirements, including the flowline and intra-facility gathering line
maintenance program requirement. An environmental equivalence
determination is subject to review and certification by a PE.  An
effective flowline and intra-facility gathering line maintenance program
includes timely detection of an oil discharge so that response
operations described in the contingency plan may be implemented
effectively. See Section V.M.4.d of the December 5, 2008 notice at 73 FR
74276 for more information about this amendment.

A comment suggested that the amended requirements for a flowline and
intra-facility gathering line maintenance program are excessive.  The
Agency disagrees.  As noted previously, if the requirement for general
secondary containment is eliminated, then some minimal requirements that
add specificity to the flowline and intra-facility gathering line
maintenance program are appropriate, particularly since there are no
industry standards for the maintenance of flowlines and intra-facility
gathering lines. To the extent that an owner and operator of a facility
cannot comply with this provision, he can deviate from these
requirements if an environmentally equivalent alternative is implemented
in accordance with §112.7(a)(2). No new or compelling information or
data was provided in comments that would cause the Agency to change its
position. Based on this and review of all relevant facts, the Agency is
making no change to this provision.

e.	Flow-Through Process Vessels

EPA is making no changes to the following provisions related to
flow-through process vessels.

i.	Exemption from Sized Secondary Containment for Flow-Through Process
Vessels

Flow-through process vessels, such as horizontal or vertical separation
vessels (for example, a heater-treater, free-water knockout, gun-barrel,
etc.) have the primary purpose of separating the oil from other
fractions (water and/or gas) and sending the separated fluid streams to
the appropriate container. In the December 2008 amendments, EPA revised
the requirements in §112.9(c)(2) to remove the requirement to provide
sized secondary containment for flow-through process vessels at oil
production facilities without making an impracticability determination,
and to allow the facility owner or operator the option to comply with
the alternate requirements in §112.9(c)(5) instead (see Section ii,
below).

EPA agrees with concerns regarding the impracticability of providing
sized secondary containment around certain flow-through process vessels
at production facilities. EPA also recognizes that similar flow-through
process equipment at non-production facilities are not subject to the
more stringent sized secondary containment and inspection requirements
for bulk storage containers; only the general secondary containment
requirements at §112.7(c) apply. However, due to the unattended (and in
some cases remote) nature of oil production operations, EPA concluded
that it was appropriate to require additional measures in lieu of sized
secondary containment for this equipment. Thus, in the December 2008
amendments, EPA provided an alternative compliance option to address
these concerns.

It is important to note that although the Agency provided an option that
allows the owner and operator to not provide sized secondary containment
for flow-through process vessels at oil production facilities, the
general secondary containment requirement of §112.7(c) still applies to
these vessels. See Section V.M.5.a of the December 5, 2008 notice at 73
FR 74277 for more information about this amendment.

EPA agrees with comments supporting the provision to exempt flow-through
process vessels from the sized secondary containment requirement.
However, two comments suggested that any exemption from the secondary
containment requirement for flow-through process vessels would cause a
greater risk for discharges of harmful quantities of oil to reach
navigable waters or adjoining shorelines. EPA agrees that some form of
secondary containment is required for these vessels. EPA also agrees
that sized secondary containment is generally preferable to general
secondary containment because these flow-through process vessels operate
at unattended facilities and often at remote locations. However, there
are instances where providing such sized secondary containment is not
always practicable. To address this concern, EPA provided the owner or
operator with a choice to comply with either the sized secondary
containment requirements, or the general secondary containment
requirements along with additional measures for inspection and
corrective action. These compliance options allow the owner or operator
to tailor the SPCC Plan to meet the facility’s operational needs while
maintaining environmental protection.

No new or compelling information or data was provided in comments that
supported modification of the provision. Based on this and review of all
relevant facts, the Agency is making no change to this provision.

ii.	Additional Requirements in Lieu of Sized Secondary Containment for
Flow-Through Process Vessels

or initiation of actions to stabilize and remediate any accumulations of
oil discharges associated with flow-through process vessels. See Section
V.M.5.b of the December 5, 2008 notice at 73 FR 74278 for more
information about this amendment.

Comments generally supported the additional requirements in lieu of
sized secondary containment for flow-through process vessels. One
comment, however, suggested that the risk of discharge from flow-through
process vessels is so low that there should be no additional
requirements. EPA disagrees with the comment because flow-through
process vessels contain oil and therefore pose a potential threat of a
discharge (e.g., failure of a dump valve). Additionally, this
alternative compliance option removes the sized secondary containment
specification for flow-through process vessels that are located at
unmanned facilities, which are often remotely located, and constantly
operating. Therefore, EPA has established alternative prevention
measures along with the general secondary containment requirement in
order to maintain environmental protection. However, the Agency provided
the owner or operator with a choice to comply with either the sized
secondary containment requirements, or the general secondary containment
requirements along with the additional measures for inspection and
corrective action. Based on this and review of all relevant facts, the
Agency is making no change to this provision.

iii.	Reportable Discharge from Flow-Through Process Vessels

In the December 2008 amendments, EPA finalized a provision to require
that if an oil  production facility owner or operator has a discharge as
described in §112.9(c)(5)(iv) from a flow-through process vessel, then
he must ensure that all flow-through process vessels using general
secondary containment comply with the sized secondary containment
requirements of §112.9(c)(2) and periodic inspection requirements of
paragraph (c)(3) within six months of the discharge discovery. A
discharge, as described in §112.9(c)(5)(iv), is either a single
discharge of more than 1,000 U.S. gallons of oil or two discharges
within any twelve month period, each of more than 42 U.S. gallons of
oil.  The amount of oil specified in this criterion refers to the amount
of the discharge that actually reaches navigable waters or adjoining
shorelines, not the total amount of the discharge released from the
container. Owners and operators do not need to include the amount of oil
discharges that are the result of natural disasters, acts of war, or
terrorism when evaluating this criterion. See Section V.M.5.c of the
December 5, 2008 notice at 73 FR 74279 for more information about this
amendment.

No comments specific to reportable discharges from flow-through process
vessels were received in the 2009 comment period. Based on this and
review of all relevant facts, the Agency is making no change to this
provision.

f. 	Clarification of the Definition of Permanently Closed Containers

In the preamble to the December 2008 amendments, the Agency addressed
concerns expressed by the regulated community over the requirements for
permanently closing a container, as described in the definition of
“permanently closed” at §112.2. There, EPA clarified that the
permanent closure requirements under the SPCC rule are separate and
distinct from the closure requirements in regulations promulgated under
Subtitle C of the Resource Conservation and Recovery Act (RCRA).
Consequently, an oil production facility does not have to undergo the
expense of permanent closure under 40 CFR part 264 or 265 of RCRA,
because the drilling fluids, produced waters, and other wastes
associated with the exploration, development, or production of crude oil
are not subject to those regulations. See Section V.M.8 of the December
5, 2008 notice at 73 FR 74290 for the full text of this preamble
clarification.

No comments were received in the 2009 comment period addressing the
clarifying language and therefore, EPA maintains its position on this
clarification.

14. 	Man-made Structures

In the preamble to the December 2008 amendments, EPA clarified that,
consistent with statements made in the preamble to a 1976 amendment to
the SPCC rule (41 FR 34164, December 11, 1976), manmade features, such
as drainage control structures and dikes, cannot be used to conclude
that there is no reasonable expectation that a discharge from the
facility will reach navigable waters or adjoining shorelines. That is,
if there is a reasonable expectation that a discharge from the facility
would reach navigable waters or adjoining shorelines in the absence of
such containment or other structures, the facility is subject to the
SPCC requirements. However, EPA noted that it may be appropriate for a
facility owner or operator to consider man-made structures (for example,
dikes, equipment, buildings, basements or other containment structures)
to determine how to comply with the SPCC rule. See Section V.N of the
December 5, 2008 notice at 73 FR 74292 for the full text of this
preamble clarification.

EPA agrees with the comment that generally supported the clarifications
on man-made structures. Based on this and review of all relevant facts,
the Agency is making no change to this clarification.

15.	Wind Turbines

In the preamble to the December 2008 amendments, EPA clarified that wind
turbines meet the definition of oil-filled operational equipment adopted
in the December 2006 SPCC rule amendments (71 FR 77266, December 26,
2006). Thus, the alternative compliance option provided for this type of
equipment in §112.7(k) is available for wind turbines, to the extent
that the wind turbines meet the oil storage capacity threshold in the
rule. The amendments to the SPCC rule promulgated in December 2006 allow
owners and operators of facilities with qualified oil-filled operational
equipment the option of preparing an oil spill contingency plan and a
written commitment of manpower, equipment, and materials to
expeditiously control and remove any oil discharged that may be harmful
without having to make an individual impracticability determination as
required in §112.7(d). If an owner or operator chooses this option, he
is also required to establish and document an inspection or monitoring
program for this qualified oil-filled operational equipment to detect
equipment failure and/or a discharge in lieu of providing secondary
containment. See Section V.P of the December 5, 2008 notice at 73 FR
74294 for the full text of this preamble clarification.

No comments were received in the 2009 comment period on the
clarification and therefore, EPA maintains its position.

16.	Technical Corrections

In the December 2008 amendments, EPA corrected the text of the
introductory paragraph of §112.3 to move the phrase “in writing”
after “must prepare” and then insert the phrase “and implement”
after the phrase “in writing,” in order to make it explicit that a
facility owner or operator must prepare and implement an SPCC Plan.

EPA also amended the introductory paragraph of §112.12 to delete the
phrase “(excluding a production facility).” This amendment corrected
an inadvertent omission when EPA removed several sections in Subpart C
of 40 CFR part 112 that were inappropriate for AFVOs in the December
2006 amendments to the SPCC rule (71 FR 77266, December 26, 2006).

Finally, the Agency amended the regulation to include “U.S.” before
gallons in several places, to indicate that the Agency means the U.S.
gallon unit of measure and not the Imperial unit of measure. See Section
V.Q of the December 5, 2008 notice at 73 FR 74294 for more information
about these technical corrections.

Comments generally supported the technical corrections. Based on this
and review of all relevant facts, the Agency is making no change to
these provisions.

Technical Corrections to Provisions of the December 2008 Amendments

	EPA is correcting the text of several of the provisions promulgated on
December 5, 2008. These corrections further clarify or update the
provisions of the December 2008 amendments without making substantive
changes to the regulatory requirements.

1. 	Tier I Qualified Facilities and Appendix G Plan Template

As required in the December 2008 amendments, a Tier I qualified facility
must meet all of the eligibility criteria for qualified facilities
promulgated by EPA in December 2006 (71 FR 77266, December 26, 2006), as
well as not have any aboveground oil storage container with a capacity
greater than 5,000 U.S. gallons. EPA developed this individual container
capacity criterion in order to link any streamlined requirements with a
reduced potential for oil discharge. The selection of the maximum
individual aboveground container capacity threshold of 5,000 U.S.
gallons is consistent with the applicable industry consensus standard
that calls for varying levels of inspection requirements based on
container size and configuration.

EPA designated qualified facilities that have an individual aboveground
oil storage container with a capacity greater than 5,000 U.S. gallons as
Tier II qualified facilities. Although the organization of the
regulatory text in §112.6 was modified to accommodate the tiered
approach, the requirements for Tier II qualified facilities remained the
same as promulgated on December 26, 2006 (71 FR 77266).

The December 2008 amendments eliminated and/or modified several SPCC
requirements for Tier I qualified facilities.  For example, the facility
diagram requirements (§112.7(a)(3)) and certain provisions that
generally do not apply to facilities that store or handle smaller
volumes of oil, such as requirements for transfers at loading racks
(§112.7(h)) were removed. The list of applicable rule provisions for
Tier I qualified facilities is included in §112.6(a)(3).

The Tier I self-certification requirement is similar in scope to that
required for an owner or operator of a Tier II qualified facility who
chooses to self-certify an SPCC Plan (as promulgated in December 2006,
71 FR 77266). Consistent with the current requirement for qualified
facilities, the owner or operator of a Tier I qualified facility is also
allowed to self-certify any technical amendments to the Plan under
§112.6(a)(2), and document this certification in the Plan template (or
some other equivalent Plan).

The December 2008 amendments provided the owner or operator of a Tier I
qualified facility with the option to complete a self-certified SPCC
Plan template (found in Appendix G to 40 CFR part 112) in lieu of a full
SPCC Plan. The owner or operator can complete the SPCC Plan template,
which is comprised of a set of streamlined SPCC rule requirements, and
implement those streamlined requirements, to comply with the SPCC
regulation. The SPCC Plan template for Tier I qualified facilities is
intended to facilitate the development of SPCC Plans at Tier I qualified
facilities. Once completed and certified by the owner or operator, the
Plan template serves as the SPCC Plan for the facility. As for any
facility subject to the SPCC rule, the owner or operator must maintain a
written copy of the Plan – which in this case would be the completed
and self-certified SPCC Plan template – at the facility or at the
nearest field office if the facility is attended less than four hours
per day (§112.3(e)(1)).

The Agency emphasizes that use of the Plan template approach is
optional. An owner or operator of a Tier I qualified facility can choose
to prepare and implement either a full PE-certified SPCC Plan or a
self-certified SPCC Plan following all of the requirements of §112.6(b)
(for a Tier II qualified facility) in order to comply with the
requirements under 40 CFR part 112. See Section V.G of the December 5,
2008 notice at 73 FR 74256 for more information about these technical
corrections.

EPA is now further clarifying the earlier amendments, as well as
correcting typographical and formatting errors in the following sections
of the Appendix G SPCC Plan Template:

Introduction – in the second sentence, the term “meet” was
replaced by “addresses” for clarity; and a sentence was added to
clarify that an owner or operator should follow State and local
requirements (such as for permitting, design and construction) and
obtain professional assistance, as appropriate;

Section I, Self-Certification Statement (§112.6(a)(1)) – points 3c
and 3d are combined and edited for increased clarity. The phrase “By
completing this Plan template” was removed because this text is
unnecessary; with this revision, EPA clarifies that completing the
template represents the preparation of a Plan, but not its
implementation.

Section II, Record of Plan Review and Amendments.  In the Five Year
Review (§112.5(b)) paragraph, EPA inserted the term “SPCC Plan” for
clarity.

Table G-2 Oil Storage Containers and Capacities – In the footnote to
the table, EPA inserted the word applicability to the phrase
“qualified facility applicability threshold” for clarity.

Table G-3 Secondary Containment and Oil Spill Control – EPA added the
phrase “cleanup occurs” which was unintentionally not printed in the
Federal Register notice for the December 2008 amendments;

Table G-5 Inspections, Testing, Recordkeeping and Personnel Training –
EPA added the word “bulk” to clarify that this provision only
applies to aboveground bulk storage containers; added citations that
were inadvertently omitted; corrected typographical errors; and removed
an unnecessary blank row;

Section A, Onshore Facilities (excluding production) (112.8(b) through
(d). 112.12(b) through (d)).  The title of this section was amended to
correct a typographical error.

Table G-10 General Rule Requirements for Onshore Facilities – EPA
added the requirement for manual activation of pumps or ejectors and
inspection of accumulations prior to discharge, a rule requirement that
was unintentionally omitted from this Table; fixed typographical errors;
added the word “bulk” to clarify that certain provisions only apply
to aboveground bulk storage containers; and defined the table border;

Table G-11 General Rule Requirements for Onshore Oil Production
Facilities – EPA defined the table border;

Table G-15 Checklist of Development and Implementation Criteria for
State, Local and Regional Oil Removal Contingency Plans (§109.5) –
EPA removed inappropriate checkboxes and reformatted the table to be
consistent with the other tables in Appendix G; and

Table G-20 Information provided to the National Response Center in the
Event of a Discharge – EPA deleted an unnecessary blank row.

Additionally, EPA is providing technical corrections in §112.6 and
Appendix G to delete the requirements related to produced water
containers, as discussed further in Section C.3 of this notice. EPA is
also adding extra space in many of the tables and formatting them so
that each table begins on a new page.

EPA’s amendments to the SPCC rule will have no effect on whether a
facility owner or operator must use a PE to meet the State or local
requirements, because the SPCC rule does not pre-empt any State or local
requirements. In States where the engineer licensing boards have
prohibited SPCC Plan self-certification, the owner or operator must have
a PE certify the Plan. Although this may limit the relief for Tier II
qualified facilities, the owner/operator can develop and certify a Tier
I qualified facility Plan to comply with the SPCC rule and have a PE
certify the SPCC Plan to meet the state requirements.

2. 	Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations

	In the December 2008 amendments, EPA exempted from SPCC applicability
underground oil storage tanks deferred from regulation under 40 CFR part
280, as originally promulgated, that supply emergency diesel generators
at nuclear power generation facilities licensed by the Nuclear
Regulatory Commission (NRC) and that meet the NRC design criteria and
quality assurance criteria. EPA amended §112.1(d)(2)(i) and
§112.1(d)(4) to include an exemption applicable to both tanks that are
completely buried and tanks that are below-grade and vaulted. Under the
NRC regulations, a nuclear power generation facility must meet certain
design criteria to ensure that the plant will be operated in a manner
protective of the public’s health and safety (such as 10 CFR part 50,
Appendix A). These NRC design criteria cover the design, fabrication,
installation, testing and operation of structures, systems, and
components important to safety. See Section V.O of the December 5, 2008
notice at 73 FR 74293 for more information about this amendment.

	The Agency agrees with comments supporting the exemption for emergency
diesel generator tanks at nuclear power stations. EPA has further
amended §112.1(d)(4) to clarify that this exemption applies to “any
underground oil storage tanks including below-grade vaulted tanks,
deferred under 40 CFR part 280, as originally promulgated, that supply
emergency diesel generators at a nuclear power generation facility
licensed by the Nuclear Regulatory Commission, provided that such a tank
is subject to any Nuclear Regulatory Commission provision regarding
design and quality criteria, including but not limited to, 10 CFR part
50.” (Emphasis added to show modified wording.) EPA has concluded that
this revision makes this provision easier to understand. EPA has also
amended §112.1(d)(2)(i) to include the phrase “including but”
before “not limited to 10 CFR part 50” for consistency.

3.	SPCC Plan Preparation and Implementation for New Oil Production
Facilities

	The variables associated with the start of operations and the
employment of green completion techniques at new oil production
facilities could lead to significant changes in necessary storage
capacity and facility design. In the December 2008 amendments,
therefore, EPA finalized an amendment to allow a new oil production
facility a period of six months after the start of operations to prepare
and implement an SPCC Plan. EPA excluded oil production facilities from
the current requirements at §112.3(b)(1), and added a new paragraph at
§112.3(b)(3) to require the owner or operator of a new oil production
facility to prepare and implement an SPCC Plan six months after the
start of operations. See Section V.M.3 of the December 5, 2008 notice at
73 FR 74272 for more information about this amendment.

This provision does not apply to drilling or workover activities at
existing oil production facilities. Drilling and workover operations are
subject to the requirements at §112.3(c) for mobile facilities, and
facility owners or operators may implement a general SPCC Plan. This
provision also does not apply to an existing oil production facility in
which a new well is drilled, and added to the existing tank
battery/facility. In this case, the facility owner or operator must
amend the SPCC Plan in accordance with §112.5(a), which requires the
Plan to be amended within six months of the facility change, and
implemented within six months of the amendment.

EPA agrees with comments supporting the provision to allow new oil
production facilities six months to prepare and implement a Plan. On
June 19, 2009 (74 FR 29136), EPA amended the compliance date for the
amended SPCC rule to November 10, 2010.  When the December 2008
amendments were promulgated, the provision applied at a new oil
production facility that began operations after July 1, 2009, which was
the applicable compliance date. In this action, EPA is making a
technical correction to change the compliance date to November 10, 2010,
to align with the current SPCC Plan preparation and implementation
compliance date for all other facilities.

4. 	Compliance Date Provisions Specific to Farms

EPA is removing the paragraphs in §112.3 specific to farms (the current
§112.3(a)(2) and (b)(2)) because on June 19, 2009 EPA established the
same the compliance dates for farms as for all other facilities (74 FR
29136); such differentiated provisions are no longer necessary.

This amendment does not remove any regulatory requirement for owners or
operators of facilities, including farms, in operation before August 16,
2002, to develop, implement and maintain an SPCC Plan in accordance with
the SPCC regulations then in effect.  Such facility owners and operators
continue to be required to maintain (that is, keep on-site and
implement) their Plans during the interim until the November 10, 2010
date for revising and implementing their Plans under the new amendments.

Provisions Removed from Final Rule

	After review of comments received and consideration of all relevant
facts, EPA is removing three of the provisions promulgated on December
5, 2008.  These are described in the section below.

1. 	Exclusions for Oil Production Facilities and Farms from
Loading/Unloading Rack Requirements

	In the December 2008 amendments, EPA specifically excluded onshore oil
production facilities and farms from the loading/unloading rack
requirements at §112.7(h). This is because the Agency believed, and
comments supported, that loading and unloading racks are not typically
associated with these types of facilities. See Section V.F.3 of the
December 5, 2008 notice at 73 FR 74251 for more information about this
amendment.

Based on review of comments and consideration of all relevant facts, EPA
is removing the specific exclusion for farms and oil production
facilities from the loading/unloading rack requirements of §112.7(h).
Thus, EPA agrees with comments received on this amendment stating that
certain facilities (i.e., farms and oil production facilities) should
not be treated differently than other facilities, even if
loading/unloading racks are not typically associated with these types of
facilities. In particular, the new definition for loading/unloading rack
(finalized in December 2008 at §112.2) clarifies the type of equipment
that is subject to the requirements at §112.7(h), eliminating the
uncertainty that may have existed at farms and oil production
facilities. For facilities (including farms and oil production
facilities) that do not have a loading/unloading rack as defined in
§112.2, the provisions at §112.7(h) do not apply; therefore, a
specific exclusion for facilities based on the assumption that they do
not have loading/unloading racks is unnecessary.

EPA does not believe there is any basis to specifically exclude
loading/unloading racks from the requirements at §112.7(h) simply
because they are not typically associated at a facility within a
specific industry sector.

2. 	Alternative Qualified Facility Eligibility Criteria for an Oil
Production Facility

In the December 2008 amendments, EPA finalized a provision that provided
alternative criteria to identify qualified facilities in the onshore oil
production sector. The alternative qualified facility eligibility
criteria for an oil production facility were: (1) no more than two
producing wells per single tank battery if the facility has an injection
well; or no more than four producing wells per single tank battery with
no injection wells at the facility; (2) each well produces no more than
ten barrels of crude oil per day; and (3) the facility has not had a
single discharge as described in §112.1(b) exceeding 1,000 U.S. gallons
or two discharges as described in §112.1(b) each exceeding 42 U.S.
gallons within any twelve month period in the three years prior to Plan
certification, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than three years. EPA developed
these alternative criteria because most oil production facilities would
not be eligible as Tier I or Tier II qualified facilities that would
allow them the option to self-certify their SPCC Plans because they
generally exceed the maximum oil storage capacity criterion.

In this action, EPA is removing the alternative qualified facility
eligibility criteria provision for oil production facilities in the
December 2008 amendments (as described in Section V.M.6, 73 FR 74280) by
amending §112.3 to remove (g)(2)(i) and (ii), and revising (g)(2).
Paragraph 112.3(g)(2) is amended to state that: “A Tier II qualified
facility is one that has had no single discharge as described in
§112.1(b) exceeding 1,000 U.S. gallons or no two discharges as
described in §112.1(b) each exceeding 42 U.S. gallons within any twelve
month period in the three years prior to the SPCC Plan
self-certification date, or since becoming subject to this part if the
facility has been in operation for less than three years (other than
discharges as described in §112.1(b) that are the result of natural
disasters, acts of war, or terrorism), and has an aggregate aboveground
oil storage capacity of 10,000 U.S. gallons or less.”

EPA is taking this action based on review of all comments received,
including those comments that raised serious questions with this
specific exclusion and consideration of all relevant facts. In
particular, the Agency has reconsidered its decision and concluded that
the alternative qualified facility eligibility criteria for onshore oil
production facilities will not effectively protect the environment from
discharges of oil in quantities that may be harmful. The Agency also
believes a PE should be involved in the development and certification of
an SPCC Plan, unless the oil production facility is eligible to
self-certify their Plans based on the qualified facilities criteria
finalized in December 2006, because they typically have complex
equipment and store large quantities of oil. These facilities are of
further concern because they typically have operations in which oil
flows continuously in unattended, remote locations and therefore pose an
environmental threat.

Allowing unrestricted oil storage capacity undermines the existing
qualified facility eligibility criteria and may pose an environmental
risk. Many small oil production facilities produce low quantities of oil
on a daily basis.  EPA intended to provide these small oil production
facilities an alternative approach to the existing 10,000 U.S. gallon
aggregate aboveground oil storage capacity qualified facility
eligibility criteria. The qualified facility eligibility criterion
limits the oil storage capacity, restricting this option to only those
facilities with a smaller discharge potential. Although a small oil
production facility produces low quantities of oil on a daily basis, the
Agency recognizes that the accumulated quantity stored can far exceed
10,000 U.S. gallons.  Consequently, the Agency has determined that the
alternative qualified facility eligibility criteria for oil production
facilities are not as protective of the environment as the qualified
facility criteria promulgated on December 26, 2006 (71 FR 77266).

Based upon EPA’s understanding of the particular aboveground oil
storage container capacities and the nature of the fluids handled at
certain small oil production facilities, the Agency has concluded that
the criteria established in the December 2008 amendments specific for
oil production facilities are not an appropriate basis to determine
whether an owner or operator of such a facility is a “qualified
facility,” and be eligible to self-certify his SPCC Plan. The
alternative eligibility criteria in the December 2008 amendments for oil
production facilities (73 FR 74236) do not serve to identify a qualified
facility consistent with the approach promulgated in the December 26,
2006 amendments (71 FR 77266), which focused on facilities with small
oil storage capacities.

The ten barrels or fewer of oil per day production rate criterion was
used in the December 2008 rulemaking because it is consistent with the
definition of a “stripper well,” as codified under the CWA in 1979
(see 40 CFR §435.60) and used by the Interstate Oil and Gas Compact
Commission (IOGCC). These wells are often referred to as “marginal
wells.” This criterion limits the total flowrate of oil at the
facility, but it does not restrict the storage capacity. An oil
production facility with only marginal wells may accumulate large
amounts of oil in a relatively short period of time due to the large
amount of oil and water mixtures typically stored at stripper well
facilities. Without a limit on storage capacity, the Agency is concerned
this approach increases the likelihood that relatively high-volume
facilities will self-certify their SPCC Plan without the spill
prevention benefits afforded by PE review and certification. This may
also lead to certain oil production facilities that could reasonably be
expected to cause substantial harm to the environment, and therefore
subject to FRP requirements under 40 CFR §112.20, to potentially
qualify to self-certify SPCC Plans under the alternative criteria.

Finally, the production rate criterion does not include the associated
fluids, such as produced water, which typically contains oil. Marginal
or stripper wells are often older and near the end of their production
life. The fraction of produced water generated by each stripper well may
be far greater than that generated by other producing wells and will
likely require significant storage container capacity prior to
re-injection or removal from the facility. The Agency agrees with the
comment that stated there may be containers storing produced water and
oil in large quantities (e.g., up to one million gallons) at oil
production facilities qualifying under these alternative criteria. The
Agency has determined that establishing a threshold for the production
rate per well does not limit the amount of oil storage, including oils
in associated fluids.

The alternative qualified facility eligibility criteria for production
facilities includes more complicated facilities that may pose a higher
risk of oil discharge. EPA intended the alternative qualified facility
criteria for oil production facilities to identify simple, uncomplicated
operations consistent with the approach used for all other qualified
facilities.  EPA reconsidered the type and scale of operations and the
equipment involved at those oil production facilities that may meet the
alternative criteria, and concluded that they are generally more complex
than the non-production facilities eligible under the qualified facility
approach in the December 26, 2006 amendments (71 FR 77266).

Although there may be some similarities across oil production
facilities, each is unique and tailored to address factors, such as the
oil field, production rate, type of fluid, location on a platform or
onshore, fluid viscosity, separation process, and type of water
injection or disposal. Given these factors, an oil production
facility’s configuration and degree of complexity is variable,
regardless of flow rate.

EPA agrees with the comment that stated that a small production facility
is not necessarily less complex than any other oil production facility.
Small oil production operations often require the same equipment,
including pumping well heads, pump jacks, flowlines, separators,
heater-treaters, crude oil and produced water containers, fittings,
headers, valves, electrical lines and electrical motors.  Failure of any
of this equipment may cause an oil discharge.

In the December 2008 amendments, EPA finalized a criterion that allows
the owner or operator of a facility with no more than two producing
wells per single tank battery and an injection well the option to
self-certify his SPCC Plan. After review of relevant facts and comments,
the Agency now has concluded that an oil production facility with
injection wells, regardless of the number of producing oil wells, is
more complex than the intended simplicity inherent in the qualified
facility eligibility criteria. An oil production facility with injection
would have equipment in addition to that found in the tank battery. One
or more injection wells are typically used to inject produced water
underground for disposal or to enhance recovery of the oil. The
underground injection process adds additional piping to the oil
production facility design and layout. The injection well process
typically consists of piping extending from a produced water container
to the injection wellhead, valves, and pumps and may include tank level
indicators, floats, flow controls, and actuators/switches. This
additional equipment offers more opportunity for a potential oil
discharge.

By setting a maximum number of wells as part of the alternative
eligibility criteria, the Agency intended to increase the likelihood
these wells were co-located with the tank battery or in relatively close
proximity. However, an oil production facility with up to four wells may
have long flowlines. Flowlines and intra-facility gathering lines may
extend for long distances to reach a tank battery, may cross or be
located closer to a navigable waterway or adjoining shorelines than the
tank battery, and often runs over land owned by an entity other than the
owner or operator of the oil production facility. The Agency has
concluded that the criterion that limits the number of wells does not
necessarily restrict the lengths of these lines, particularly with the
amendment to the definition of “facility,” which provides the owner
or operator of the facility with flexibility in defining the oil
production facility, such that a formal PE certification and review,
particularly for the flowline and intra-facility gathering line
maintenance program, at these facilities is likely appropriate.
Furthermore, the Agency recognizes that because there is currently no
industry standard for flowline maintenance, the need for a PE to develop
a flowline and intra-facility gathering line maintenance program in
accordance with good engineering practice is even more significant.

As EPA stated in the preamble of the December 2006 final rule,
facilities handling smaller amounts of oil are typically simpler in
layout and operation. Most facilities with an oil storage capacity of
10,000 gallons or less are in industrial sectors that are end consumers
of oil (i.e. farms, real estate, rental and leasing, retail trade,
construction). These facilities generally tend to use oil on-site for
heating purposes, or to fuel emergency power generators or heavy
machinery. The configuration of the oil-related equipment tends to be
relatively standard and simple. Oil is commonly stored in a few bulk
storage containers which are often bought off-the-shelf from a tank
manufacturer or installer (e.g., standard UL–142 tanks) and connected
with few short lengths of piping (see December 26, 2006, 71 FR 77270).
This is generally not the case at oil production facilities.  Therefore,
for the reasons discussed above, the alternative qualified facility
criteria for oil production facilities finalized in the December 2008
final rule did not achieve the result of limiting the eligibility to
self-certify SPCC Plans to those facilities with simple configurations
and operations.

	The volume of oil discharged from production facilities is increasing.
As described in EPA’s study of the oil production sector (found in the
docket for this rulemaking at EPA-HQ-OPA-2007-0584-0015), there were
401,072 marginal oil wells (i.e., wells producing up to 10 barrels per
day) operating in 2005. The percent of marginal oil wells varies by
state, from approximately 15 percent in South Dakota, to 100 percent in
several Appalachian and mid-Western states. While individual production
rates may be small (an average of 2.2 barrels per day), marginal wells
collectively represent a significant, and growing, share of U.S. oil
production, due to the overall decline in domestic production,
particularly from onshore fields. According to the Department of Energy,
as of 2005, about 19 percent of crude oil produced in the U.S. came from
marginal wells.  In the lower 48 states, marginal wells represented
approximately 30 percent of onshore oil production in 2003.

The SPCC regulation is based on oil storage capacity and the potential
for discharges of oil in quantities that may be harmful to navigable
waters or adjoining shorelines. The Agency has concluded that small oil
production facilities (i.e., those comprised of marginal wells) have and
can continue to pose a threat of an oil discharge to navigable waters or
adjoining shorelines. EPA has reviewed the spill data for the oil
production sector contained in its study of the exploration and
production sector (Considerations for the Regulation of Onshore Oil
Exploration and Production Facilities Under the Spill Prevention,
Control, and Countermeasure Regulation (40 CFR Part 112)) found in the
docket for this rulemaking at EPA-HQ-OPA-2007-0584-0015). While these
data do not characterize the extent of environmental damage caused by
oil discharges from small oil production facilities, they demonstrate
that the volume of oil discharged from onshore oil production facilities
are increasing, and the number of oil discharges on a yearly basis has
remained the same, despite a decline in crude oil production. In
addition, oil production facilities are often unattended, and typically
located in remote areas, which potentially increases the risk of
environmental damage from an oil discharge. Therefore, the combination
of the potential for oil storage capacity greater than the 10,000 U.S.
gallons threshold, identified risk factors and spill history leads EPA
to conclude that these facilities need the benefit of PE review and
certification of their SPCC Plans.

Furthermore, information received by the Agency from other sources,
which are summarized in the docket in EPA’s “Preliminary Assessment
of SPCC Compliance Costs and Energy Impacts on Oil Production and
Exploration”: Overall Conclusions and Response to Comments
(EPA-HQ-OPA-2007-0584-0173), indicate increased spill potential due to
equipment failure as oil production equipment ages, particularly if
maintenance has been inadequate. Much of the U.S. oil production
infrastructure has been in place for decades. Marginal wells, in
particular, are often older wells nearing the end of their production
life, and may have older equipment that may be more prone to failure.

EPA recognizes that several comments expressed general support for the
alternative qualified facility eligibility criteria for an oil
production facility. However, upon reconsideration of all relevant
facts, including comments opposing the approach, EPA has decided for the
reasons explained in detail above to remove the provisions related to
alternative qualified facility eligibility criteria for an oil
production facility in the final rule.

3. 	Produced Water Containers

Produced water containers are typically located within a tank battery at
an oil production facility where they are used to store well fluids that
result after marketable crude oil is separated from the fluids extracted
from the reservoir and prior to disposal, subsequent use (e.g.,
re-injection or beneficial reuse), or further treatment. Under normal
operating conditions, a layer of oil may be present on top of the fluids
in these produced water containers. The amount of oil by volume observed
in produced water containers varies, but based on EPA’s understanding,
is generally estimated to range from less than one to up to ten percent,
and can be greater. These produced water containers are typically at the
end of the oil treatment process and often accumulate emulsified oil not
captured in the separation process.

In the December 5, 2008 amendments, EPA adopted two alternatives for
produced water containers at oil production facilities. Under the first
alternative, EPA exempted produced water containers at oil production
facilities from the requirements of the SPCC rule if a PE certified, as
part of the SPCC Plan, that the contents of a produced water container,
if completely discharged, would not contain oil in amounts that may be
harmful (as described in 40 CFR part 110) based on the efficiency of the
oil/water separation technology used.  Under this alternative, the
capacity of the exempted containers would not count towards the facility
aggregate oil storage capacity.

For those produced water containers that were not eligible for the
exemption, the facility owner/operator could comply with the general
secondary containment requirements in lieu of sized secondary
containment and conduct visual inspections, maintenance and corrective
action, if a PE described in the SPCC Plan and certified that a practice
was established that was designed to remove the amount of free-phase oil
from the produced water container on a scheduled and routine basis.
These containers would count toward the aggregate storage capacity. If
the production facility had certain types of oil discharges or failed to
meet the requirements of this part of the rule, the facility would no
longer be eligible for the exemption or the streamlined requirements.
EPA also promulgated a definition of produced water container to clarify
which containers were eligible for these rule provisions.

In this action, EPA is amending or removing all rule elements associated
with produced water containers in the December 2008 amendments (Section
V.M.7, 73 FR 74285) as described below:

Amending §112.1 to remove paragraphs (d)(2)(ii)(F) and (d)(12);

Removing the definition for produced water container in §112.2;

Amending reference to §§112.3(d)(vi) and (d)(vii) in the rule text to
read §§112.3(d)(1)(vi) and (d)(1)(vii) due to inadvertent omission of
text characters;

Amending §112.3 by removing paragraphs (d)(1)(vi) and (d)(1)(vii).

Amending §112.5 by removing paragraphs (b) and (c), revising paragraph
(d) to remove reference to deleted paragraphs, and redesignating
paragraphs (d) and (e) as paragraphs (b) and (c);

Amending §112.6 by revising paragraphs (a)(1)(vii) and (b)(1)(vii) to
remove references to produced water containers; removing paragraphs
(b)(3)(iii) and (b)(4)(ii); and revising paragraph (b)(4)(iii) to remove
reference to produced water containers and redesignating as paragraph
(b)(4)(ii);

Amending §112.7 by revising paragraph (a)(3) to remove reference to
produced water containers;

Amending §112.9 by revising paragraphs §§112.9(c)(2) and (c)(3) to
remove reference to produced water containers and removing paragraph
§112.9(c)(6); and

Removing all references to produced water containers in Appendix G. –
Tier I Qualified Facility SPCC Plan Template

EPA is taking this action after reviewing all of the relevant facts and
all of the comments received on this issue for the October 2007 proposed
rule (72 FR 58378 October 15, 2007) and the December 2008 amendments (73
FR 74236 and 74 FR 5900 February 3, 2009). Several comments expressed
support for the exemption, with one comment arguing that regulation of
produced water is outside the SPCC rule’s jurisdiction. EPA also
received comments that opposed the exemptions and alternative approaches
for produced water containers. Based on this review, the Agency has
determined that the alternative options for produced water containers
would not effectively protect the environment from discharges of
quantities of oil that may be harmful.  Comments submitted during the
2009 comment period also pointed out that the provisions for produced
water containers were confusing and unnecessary, with one comment
stating that the exemption lacked a supportable rationale. Other
comments noted that produced water containers contain oil, discharges
occur and can cause harm, and sized secondary containment is needed.
These comments are discussed in more detail below.

Containers with no oil are not subject to the SPCC rule. The Agency
agrees with comments that a fluid containing no oil is not subject to
the SPCC requirements. A container that does not hold oil is not