Alternative time frames. Start up of operations (103, 125, 155, 165, 170); after the completion of facility changes or modifications (54, 57, 75). After a design change, but before implementing that change (77); after installing new structures and equipment, but before operation (L2); and during the next triennial review (71). We should require owners or operators to amend the Plan when there is a material change in facility design, construction, operation, or maintenance. (75) For multi well drilling programs, we should require owners or operators to amend the Plan after completing a drilling program. (167)

"Adequate time." We should allow owners or operators of existing facilities adequate time for Plan amendment. (71)

30 days. Thirty days after completing new construction, and make the extant Plan temporary during that period. (37)

90 days. We should allow owners or operators of exploration and production facilities and small gas processing operations 90 days to amend the Plan following any facility change. (114)

6 months. (67, 91, 110, 113, 167, 173,1155 (1993 commenter)). For implementing an amendment, we should allow owners or operators six months following facility changes. (35, 78, 101, 145) We should require implementing the Plan amendment within six months of a new facility's initial operations or 139 additions to an existing facility. The extant Plan should be temporary during that period. (134) We should allow owners or operators six months to amend the Plan following a change that does not increase the facility's oil discharge potential, but require a Plan amendment before a change that increases oil discharge potential. (190)

Emergencies. The implementation time line could be detrimental in an emergency, because an owner or operator could not make immediate facility modifications or repairs without first amending the Plan. (71, 191)

When amendment is necessary.

Changes consistent with existing Plan. We should not require amendment of SPCC Plans for facility changes consistent with the existing Plan. (31, 86, 160, 1155 (1993 commenter))

Changes in discharge potential. We should require Plan amendment for replacing equipment only if the facility's oil discharge potential is materially changed. (31, 160)

Decrease in discharge potential. We have no environmental justification for imposing amendment costs when owners or operators make changes that decrease a facility's discharge risk. (125)

Increase in discharge potential. "APC recommends the wording in this section reflect an amendment is required, whenever a facility's potential for discharge of oil is changed or increased. The removal of equipment decreases the facility's potential and appropriate documentation should be placed in the Plan and be amended during the three year review process." (25, 35, 66, 71, 72, 98, 101, 118, 125, 167, L12)

Changes "significantly impacting the environment." We should require owners or operators to amend the Plan only for changes that can significantly impact the environment. (L8)

Changes warranting amendment. "We recommend that current SPCC Plans be allowed to remain intact as currently written until changes occur to existing oil storage facilities which warrant SPCC Plan amendments." (79)

"Indicia of problems." Amendments should be made "when there are indicia of problems." (43)

Response: Support for proposal. We appreciate commenter support. 140 Accumulation of changes. An owner or operator must amend the Plan when there is a material change at a facility. Therefore, he may not accumulate material changes for six months before amending the Plan.

Alternatives to amendment. We disagree that owner/ operator review of facility changes is a substitute for Plan amendment. When no amendment is required because there is no material change, there is nothing to do. When amendment is required, it must be certified by a PE. We distinguish this review situation from the technological review mandated under §112.5( b). Under that provision, the owner or operator may certify that there has been a review and that he will not amend the Plan as a result.

Log book. We agree that an owner or operator may document routine activities in an operations log book rather than require a Plan amendment. However, in the event of a material change at a facility, a log book entry is no substitute for Plan amendment.

Material changes. We appreciate commenter support for our proposed examples of facility changes that constitute a material change. A material change is one that may either increase or decrease the potential for a discharge. We believe that an amendment is necessary when a facility change results in a decrease in the volume stored or a decrease in the potential for an oil spill because EPA needs this information to determine compliance with the rule. For example, the amount of secondary containment required depends on the storage capacity of a container. We agree with the commenter that the rule should be worded to indicate that the examples are for illustration only, because the items in the list may not always trigger amendments, and because the list is not exclusive. Only changes which materially affect operations trigger the amendment requirement. Ordinary maintenance or non material changes which do not affect the potential for the discharge of oil do not.

We disagree that decommissioning of a container that results in permanent closure of that container is not a material amendment. Decommissioning a container could materially decrease the potential for a discharge and require Plan amendment, unless such decommissioning brings the facility below the regulatory threshold, making the preparation and implementation of a Plan no longer a requirement. We also believe that the oversight of a Professional Engineer is necessary to ensure that the container is in fact properly closed.

We agree that replacement of tanks, containers, piping, or equipment may not be a material change if the replacements are identical in quality, capacity, and number. However, a replacement of one tank with more than one identical tank resulting in greater storage capacity is a material change because the storage capacity of the facility, and its consequent discharge potential, have increased. The addition of a new piping run to an already existing run of 6 pipes carrying similar types of materials may likewise be a material change because it may reflect a change in storage capacity or may affect the integrity of the secondary containment system. 141 Changes of product. We have added to the list of examples, on a commenter's suggestion, "changes of product." We added "changes of product" because such change may materially affect facility operations and therefore be a material change. An example of a change of product that would be a material change would be a change from storage of asphalt to storage of gasoline. Storage of gasoline instead of asphalt presents an increased fire and explosion hazard. A switch from storage of gasoline to storage of asphalt might result in increased stress on the container leading to its failure. Changes of product involving different grades of gasoline might not be a material change and thus not require amendment of the Plan if the differing grades of gasoline do not substantially change the conditions of storage and potential for discharge.

A change in service may also be a material change if it affects the potential for a discharge. A "change in service" is a change from previous operating conditions involving different properties of the stored product such as specific gravity or corrosivity and/ or different service conditions of temperature and/ or pressure. Therefore, we have amended the rule to add "or service" after the phrase "change of product."

Revision of standard operation or maintenance procedures at a facility. A revision of a standard operation or maintenance procedure is a change in such operation or procedure that may materially affect the facility's potential for discharge. If it does, it must be the subject of an amendment to the Plan.

Time line for amendment implementation. We agree with commenters that we should not require Plan amendment before material changes are made. Therefore, we have revised the proposed rule to provide a maximum of six months for Plan amendment, and a maximum of six more months for amendment implementation. This is the current standard. We note that §112.3( f) allows the RA to authorize an extension of time to prepare and implement an amendment under certain circumstances.

When amendment is necessary. We agree with the commenter who suggested that we maintain the current standard for amendments, i. e., when there is a change that materially affects the facility's potential to discharge oil. This position accords with our stance on when Plans should be prepared and implemented. See §112.3. The other suggested standards too narrowly limit the changes which would trigger Plan amendment. We believe that an amendment is necessary when a facility change results in a decrease in the volume stored or a decrease in the potential for an oil spill because EPA needs this information to determine compliance with the rule. For example, the amount of secondary containment required depends on the storage capacity of a container. Decreases might also affect the way a facility plans emergency response measures and training procedures. A lesser capacity might require different response measures than a larger capacity. The training of employees might be affected because the operation and maintenance of the facility might be affected by a lesser storage capacity. 142 Likewise, a standard requiring amendment "when there are indicia of problems" is too vague and leaves problems unaddressed which may result in a discharge as described in §112.1( b). A standard requiring an amendment only when the change would cause the spill potential to exceed the Plan's capabilities (because day to day changes do not affect the worst case spill) would have the effect of leaving no documentation of amendments which might affect discharges which do not reach the standard of "worst case spill." While we encourage facilities to incorporate new procedures into Plans which would help to prevent discharges, amendments are still necessary when material changes are made to document those new procedures, and thus facilitate the enforcement of the rule's requirements. We disagree that a small facility should be exempt from making amendments for material changes. Amendments may be necessary at large or small facilities alike to prevent discharges after material changes.

Tanks over 5, 000 gallons. We decline to apply the §112.5( a) material change requirement only to tanks or containers over 5, 000 gallons. A small container may be the source of a discharge. Therefore, preventive measures are necessary for such containers, including Plan amendments.

VIII  B: Periodic review of plans  §112.5( b)

Background: Under §112.5( b) of the current rule, the owner or operator of a facility subject to §112.3( a), (b), or (c) must complete a review and evaluation of his SPCC Plan at least once every three years from the date his facility becomes subject to part 112. He must amend the SPCC Plan within six months of the review to include more effective prevention and control technology if such technology will significantly reduce the likelihood of a spill event from the facility, and if such technology has been fieldproven at the time of the review.

In the 1991 proposal, we requested comments on whether a facility owner or operator should affix a signed and dated statement to the SPCC Plan indicating that the triennial review has taken place and whether the Plan requires amendment. We did not propose a change in rule text in 1991, but in 1997 we proposed to require the owner or operator to certify completion of the review. We also proposed in 1997 to change the three year review cycle to a five year review cycle. We address the comments received on the 1997 proposal in the Response to Comments document for the 1997 proposal.

Comments: Support for proposal. "Without this requirement, we feel that many companies would claim to have reviewed their plan when they had not." (10, 27, 62, 74, 95, L17).

Opposition to proposal. "The requirement would be extremely costly and unnecessary. (28, 31, 37, 54, 83, 86, 101, 143, 160) If a Plan is submitted and approved, we should require no further changes. (28, 101) 143 Case by case basis. "The requirement proposed at subsection (b) should be deleted. If necessary, they could be applied on a case by case basis to facilities determined by the Agency to present a high risk of catastrophic failure. In no case should they be applied to all facilities subject to SPCC Plan requirements." (31, 86, 160)

Lack of oversight. We cited no evidence of an increased number of spills from SPCC regulated facilities due to a lack of managerial oversight. There is no evidence that more managerial oversight would improve the quality and effectiveness of an SPCC Plan. (31, 34) This provision would be redundant and would result in an unnecessary paperwork increase. (25, 155, 190, 192)

Owner/ operator discretion. "This rule should remain flexible and be implemented at the discretion of the facility owner/ operator. If EPA believes that a technology should be adopted by industry, it should announce it in the Federal Register, hold a public hearing, and consider all the arguments for and against imposing the requirement." (143)

PE input. "Accordingly, IFTOA recommends that amendments to the SPCC Plan be made following triennial review and evaluation if the Registered PE, after his review of the new technology and a cost benefit analysis, informs the company that changes should be made. Thus, good engineering practices rather than `speculation' about new technology will be the underlying basis for any amendment." (54)

Production facilities. "Applying such a requirement to typical oil and gas production operations could cause premature abandonment of valuable reserves by imposing potentially high investment requirements on facilities which by nature produce a decreasing revenue stream over time. Given the low risk from the typical oil and gas production operation, such a requirement is unjustified." (31, 86)

Field proven technology. We should clarify the term field proven technology. (35, 27)

Who performs the review. "Professional Engineers, not facility owners and operators, should complete the three year SPCC Plan review and evaluation to determine if the facility is in compliance with relative industry standards as well as federal and state rules and regulations. Most owners, if left to their own discretion, will not voluntarily say or realize that their facility is not in compliance. This puts a greater burden on the regulating community to verify facility compliance." (111)

Documentation of review. We should require owners or operators to affix a signed and dated statement to the Plan stating that the review has taken place, and indicating whether an amendment to the Plan is necessary. (121) 144 Response: Support for proposal. We appreciate commenter support. We note that we do not routinely require an owner or operator to submit the Plan nor do we approve Plans. We decline to grant the owner or operator discretion to decide whether or not to conduct the review. This provision is important for all regulated facilities, large and small, because modern technology is dynamic, and a responsible owner or operator should periodically assess whether the latest field proven technological advances could decrease the facility's oil spill potential.

Documentation of review. We agree that we should require an owner or operator to affix a signed and dated statement to the Plan stating that the review has taken place, and indicating whether an amendment to the Plan is necessary. See the 1997 Response to Comments Document for further discussion of this issue.

Time line for amendment implementation. We agree with commenters (see comments on proposed §112.5( a)) that the preparation and implementation of Plan amendments require more time than proposed. The same rationale applies to the preparation and implementation of amendments required due to five year reviews. Therefore, we will require adherence to the time lines laid down in §112.5( b) for amendments. Currently, §112.5( b) requires that Plan amendments be prepared within six months. It is silent as to timelines for implementation. Therefore, we have revised the rule to clarify that amendments must be implemented as soon as possible, but within the next six months. This is the current standard for implementation of certain other amendments. See, for example, §§ 112.3( a) and 112.4( e). We note that §112.3( f) allows you to request an extension of time to prepare and implement an amendment.

Field proven technology. Field proven technology means that the technology has been validated in a setting typical of everyday use.

VIII  C: PE certification of technical amendments  §112.5( c)

Background: Under §112.5( c) of the current rule, a Professional Engineer (PE) must certify any amendment to an SPCC Plan in accordance with §112.3( d). We proposed to modify this provision in 1991 to require that a PE must certify all amendments to the Plan except for the contact list required by §112.7( a)( 3)( ix).

Comments: Support for proposal. Allowing changes to the contact list without PE certification makes sense and results in cost savings for facilities. (23, 27, 88, 103)

PE certification. The §112.5( c) requirement to certify every amendment by a PE poses too great a cost, and the benefits do not justify the costs. (28, 69, 101, 165, L15)

Increase in discharge potential. We should require PE certification only for changes that increase a facility's potential to discharge oil. (95, 102, 167, L12) 145 Changes "affecting" discharge potential. We should require PE certification only for changes that affect a facility's potential to discharge oil. (33, 48, 67, 173, 175, L7)

"Modify" physical characteristics. We should require PE certification only for facility changes that modify the physical characteristics and engineering features described in the Plan. (115)

Substantive changes, three year review. We should require Plan recertification only if the owner or operator makes substantive changes to the Plan or is engaged in the Plan three year review. (75)

PE certification  technical amendments. Adopting the proposed requirement would result in less frequent Plan revision. (62) Decommissioning tanks, minor modifications to piping systems, and changes in operations or maintenance procedures at a facility should not require Plan recertification. (113, 165, L15) "Section 112.5( c) should be revised to allow some facility changes, including those changes requiring Plan amendments [see 112.5( a)] without the requirement to recertify the Plan." (91, 133, 182)

PE Certification  Plan or amendment. We should clarify whether a PE must recertify the Plan or simply certify Plan amendments. (76)

Alternate certification suggested. We should revise §112.5( c) to allow either a geologist or hydrologist with a degree and five years experience; an engineer with a degree and five years experience; or a registered PE to certify Plan amendments. (70)

Response: Support for proposal. We appreciate commenter support. However, we have reduced the regulatory and information collection burden by permitting a five year review interval, with the same technological conditions. We have also adopted the requirement proposed in 1997 that the owner or operator certify completion of the review.

PE certification. It is the responsibility of the owner or operator to document completion of review, but completion of review and Plan amendment are two different processes. PE certification is not necessary unless the Plan is amended.

PE certification  technical amendments. We believe that PE certification is necessary for any technical amendment that requires the application of good engineering practice. We believe that the value of such certification justifies the cost, in that good engineering practice is essential to help prevent discharges. Therefore, we have amended the rule to require PE certification for technical changes only. Non technical changes not requiring the exercise of good engineering practice do not require PE certification. Such non technical changes include but are not limited to items as: changes to the contact list; more stringent requirements for stormwater discharges to comply with NPDES rules; phone numbers; product changes if the new product is 146 compatible with conditions in the existing tank and secondary containment; and, any other changes which do not materially affect the facility's potential to discharge oil. If the owner or operator is not sure whether the change is technical or non technical, he should have it certified.

PE Certification  Plan or amendment. The PE must only certify any amendments made when the owner or operator amends the Plan pursuant to §112.5( c), not the entire Plan.

Alternate certification suggested. We disagree that anyone other than a PE should certify a Plan or an amendment. See the discussion under section IV. D and under section V (relating to §112.3( d)) of today's preamble, and section VI. C of this document.

PE certification  standard for amendment. We disagree that we should require PE certification only for changes that would increase a facility's potential to discharge oil. We believe that an amendment is necessary when a facility change results in a decrease in the volume stored or a decrease in the potential for an oil spill because EPA needs this information to determine compliance with the rule. For example, the amount of secondary containment required depends on the storage capacity of a container. 147 Category IX: Civil Penalties  §112.6 (Rescinded)

Background: Section 112.6 of the original SPCC rule set out the civil penalties associated with violating various part 112 provisions. In 1991, we proposed a more extensive list of provisions, the violation of which would subject an owner or operator to these penalties.

Comments: Federal agencies are subject to civil penalties under the CWA. (42) Criminal penalties associated with negligent violations are unreasonable because one drop of oil is a harmful quantity. (62) The civil penalties stated in §112.6 are excessive – especially for small oil facilities. The penalty amounts might exceed a small operator's net worth. (28, 101) The terms substantial harm and sensitive (environments) are vague, and owners or operators may face law suits as a consequence of various interpretations of these terms. (149) The amendment is unnecessary because current penalty provisions already encourage adequate containment and spill prevention measures. (192)

Response: We have not adopted the proposal that would expand the list of part 112 provisions and the civil penalties associated with violating those provisions because we rescinded §112.6 in 1996. We rescinded §112.6 because that penalty provision no longer accurately reflected the penalties provided for under section 311( b) of the Act, as amended by OPA. March 11, 1996, 61 FR 9646.

EPA disagrees that Federal agencies are subject to penalties or fines under the CWA because the Federal government is not a "person" under sections 311( a)( 7) or 502 of the CWA. Only "persons" (including owners or operators and persons in charge) are subject to such penalties. Therefore, although Federal agencies must comply with requirements of a CWA section 311 rule in accordance with CWA section 313, they are not subject to civil or criminal penalties or fines. See U. S. Department of Energy v. Ohio, 503 U. S. 607, 618 (1992) (because the CWA does not define "person" to include the United States, the civil penalty provisions are not applicable.) 148 Category X: General substantive requirements  §112.7 X  A: Reorganization of the regulation  §112.7( a) and (a)( 1) (See also section V 14

Background: In 1991, we proposed to separate §112.7 into five sections (§§ 112.7, 112. 8, 112. 9, 112. 10, and 112. 11), based on facility type to promote ease in using and understanding the regulation.

Proposed §112.7 provided general requirements for preparing SPCC Plans. The new sections addressed detailed Plan requirements for onshore facilities (excluding production facilities) (§ 112. 8); onshore production facilities (§ 112. 9); onshore oil drilling and workover facilities (§ 112. 10); and offshore oil drilling, production, and workover facilities (§ 112. 11). In reorganizing part 112 into sections, we intended no substantive change.

In 1995, Congress enacted Public Law 104 55, the Edible Oil Regulatory Reform Act (EORRA). That statute mandates that most Federal agencies differentiate between and establish separate classes for various types of oils. In response to EORRA, we have divided part 112 by subparts for the various classes of oil listed in that Act. Subpart A consists of an applicability section, definitions, and general requirements for all facilities. Subpart B is for petroleum oils and non petroleum oils, except for animal fats and vegetable oils. Subpart C is for animal fats and oils and greases, and fish and marine mammal oils; and for oils of vegetable origin, including oils from seeds, nuts, fruits, and kernels. Subpart D is for response requirements.

Sequence of Plan. In 1991, in §112.7( a)( 1), we reproposed the requirement in the current §112.7 introductory paragraph that the Plan must follow the sequence outlined in §112. 7, and include a discussion of how the facility conforms with the requirements listed in the rule. We modified the 1991 proposal in 1997 to allow alternate formats. See the preamble to today's rule and the 1997 Comment Response Document. In the final rule, the reference to sequence §112.7( a)( 1) was relocated to the introductory paragraph of §112.7( a).

Current §112.7( a)  pre 1974 spills. Because the information was no longer relevant, in 1991, we proposed deletion of §112.7( a), which required a description of certain discharges to navigable waters or adjoining shorelines that occurred prior to the effective date of the rule in 1974.

Comments: Current §112.7( a)  pre 1974 spills. "This proposal to eliminate the inventory requirement is appropriate since records of pre 1973 discharges often do not exist, and even if these records are available, they provide no useful environmental protection benefit to current mining operations or to EPA and create a serious administrative and investigative burden." (25, 35, 114) 149 Management approval of Plan. We were unclear when we proposed in §112.7( a)( 1) that "the Plan shall have the full approval of management at a level with authority to commit the necessary resources to fully implement the Plan." We should clarify whether we require any documentation for this approval and whether there are any limitations on who we consider "management." (115)

Sequence of Plan.

§112.7( a)( 3). The sequence should be as outlined in §112.7( a)( 3). It "would be most helpful to have the outline clearly stated by a paragraph immediately following Section 112.7( a)( 1)." (121, L33)

Clarification needed. "The proposed rule is written in such a way that is unclear as to the proper format of the plan. ... We recommend that a guidance document containing examples of acceptable SPCC Plans be made available before or at the time of promulgation of the final rule." (79)

No set sequence. "The Section 112.7( a)( 1) requirement that all Plans follow a specific `sequence' should be deleted. To require that all Plans to follow a predesignated sequence which may or may not be the most appropriate or useful for the facility personnel that must carry out the Plan is not in the best interest of protecting navigable waters. The Plan developers should be allowed the freedom to organize the Plan to suit the facility needs relative to SPCC requirements and to incorporate elements required by other regulations for the development of such emergency prevention and response plans. During an actual emergency, a consolidated Plan greatly enhances the effectiveness of the response." (67, 95, 102, 175)

Recommendation instead. We should change the requirement to a recommendation, because a requirement provides no pollution prevention benefit. (95)

Support for reorganization. Support for our decision to separate §112.7 into five sections based on facility type. EPA recognized the differences in facility design and sought to provide the regulated community with greater certainty about its legal obligations. (27, 53, L4)

Opposition to reorganization. We would increase reporting requirements; replace an existing, satisfactory compliance program with one that asserts additional command and control authority; expand regulatory jurisdiction; and increase compliance costs to industry and society, while providing no incremental environmental protection benefit. (35) We are creating an unnecessary burden by restructuring the regulation. (16, 79)

Response: We have reorganized the rule text, placing §§ 112.8 through 112.11 into Subpart B. We have changed the section numbers of the provisions, but have not thereby imposed new requirements, nor expanded our jurisdiction or authority. 150 Current §112.7( a)  pre 1974 spills. In 1991, we proposed to delete §112.7( a), which required a description of certain discharges to navigable waters or adjoining shorelines which occurred prior to the effective date of the rule in 1974, because that information was no longer relevant. 56 FR 54620. We received several comments supporting the proposed deletion of this provision, and have deleted it.

Management approval of Plan. The owner or operator of the facility, or a person at a management level with sufficient authority to commit the necessary resources, must implement the Plan. That person may vary from facility to facility, therefore we cannot specify a certain title. Documentation of this authority is shown by signature on the Plan.

Sequence of Plan. In the 1997 proposal, we withdrew the1991 proposal that would have required a Plan to follow the sequence outlined in §112.7. See the Response to Comments Document for the 1997 proposal for the comments and responses to that proposal.

X  B: Deviations  §112.7( a)( 2)

Background: In 1991, we proposed to amend §112.7( a)( 2) to permit the use of methods not expressly called for in proposed §112.7( c) and §§ 112.8 through 112.11, as long as these practices provided environmental protection equivalent to part 112 provisions. In the 1991 proposal, we said that we would retain our discretion to determine that an alternative method did not provide equivalent protection.

Comments: Support for proposal. This provision would encourage development of innovative spill prevention and control measures. (72, 164, 190, L29)

Opposition to proposal.

Electrical equipment. Requirements other than the secondary containment and integrity testing requirements  may be impracticable for electrical equipment, including the proposed §112.8 drainage requirements and the requirement to provide detailed site plans, flow paths, and failure analyses. (125)

RA oversight.

"Apparent" equivalency. References the provision in proposed §112.8( b)( 3) that "drainage systems from undiked areas `shall' flow into ponds, lagoons, or catchment basins" as "one example of a requirement that does not lend itself to comparison with an `equivalent' alternative." Equivalency may not be apparent in some instances from the physical structure of the alternative measure. "...( I) n practice it will be impossible to prove equivalency to the satisfaction of EPA enforcement officials." (125, 146, 170, 189, L27) 151 EPA evaluation. "An alternative is to require that Plans containing such a technical waiver be reviewed by US EPA in order to determine if such a method is applicable to the use intended." Whether an alternate measure provides "equivalent alternate protection" depends on the facility and the location within the facility. (76)

Inspectors and equivalency. The "check lists of requirements" that inspectors often carry do not include "equivalent environmental protection." Because we did not provide guidance on what constitutes an equivalent measure, the inspector may be "unfamiliar with the unique operational characteristics of utility equipment." (125)

Mathemetical equivalency. We should clarify that §112.7( a)( 2) does not require mathematical equivalency of every requirement, but rather, the "achievement of substantially the same level of overall protection from the risk of discharge at the facility as the specific requirement seeks to achieve." It would be impossible to prove equivalency to the satisfaction of inspectors. (125, 170)

No RA oversight. Would delete provision allowing RA to overrule alternative measures selected under this section. (121)

Response: Support for proposal. We appreciate commenter support.

Applicability. We generally agree with the commenter that an owner or operator should have flexibility to substitute alternate measures providing equivalent environmental protection in place of express requirements. Therefore, we have expanded the proposal to allow deviations from the requirements in §112.7( g), (h)( 2) and (3), or (i), as well as subparts B, and C, except for the listed secondary containment provisions in §112.7 and subparts B and C. The proposed rule already included possible deviations for any of the requirements listed in §§ 112.7( c), 112.8, 112.9, 112.10, and 112.11. We have expanded this possibility of deviation to include the new subparts we have added for various classes of oils. We take this step because we believe that the application of good engineering practice requires the flexibility to use alternative measures when such measures offer equivalent environmental protection. This provision may be especially important in differentiating between requirements for facilities storing, processing, or otherwise using various types of oil.

A deviation may be used whenever an owner or operator can explain his reasons for nonconformance, and provide equivalent environmental protection. Possible rationales for a deviation include when the owner or operator can show that the particular requirement is inappropriate for the facility because of good engineering practice considerations or other reasons, and that he can achieve equivalent environmental protection in an alternate manner. For example, a requirement that may be essential for a facility storing gasoline may be inappropriate for a facility storing asphalt; or, the owner or operator may be able to implement equivalent environmental protection through an alternate technology. An owner or operator may consider cost as one of the 152 factors in deciding whether to deviate from a particular requirement, but the alternate provided must achieve environmental protection equivalent to the required measure. The owner or operator must ensure that the design of any alternate device used as a deviation is adequate for the facility, and that the alternate device is adequately maintained. In all cases, the owner or operator must explain in the Plan his reason for nonconformance. We wish to be clear that we do not intend this deviation provision to be used as a means to avoid compliance with the rule or simply as an excuse for not meeting requirements the owner or operator believes are too costly. The alternate measure chosen must represent good engineering practice and must achieve environmental protection equivalent to the rule requirement. Technical deviations, like other substantive technical portions of the Plan requiring the application of engineering judgment, are subject to PE certification.

In the preamble to the 1991 proposal (at 56 FR 54614), we noted that "... aboveground storage tanks without secondary containment pose a particularly significant threat to the environment. The Phase One modifications would retain the current requirement for facility owners or operators who are unable to provide certain structures or equipment for oil spill prevention, including secondary containment, to prepare facilityspecific oil spill contingency plans in lieu of the prevention systems." In keeping with this position, we have deleted the proposed deviation in §112.7( a)( 2) for the secondary containment requirements in §§ 112.7( c) and (h)( 1); and for proposed §§ 112.8( c)( 2), 112.8( c)( 11), 112.9( c)( 2), 112.10( c); as well as for the new sections which are the counterparts of the proposed sections, i. e., §§ 112.12( c)( 2), 112.12( c)( 11), 112.13( c)( 2), and 112.14( c), because a more appropriate deviation provision already exists in §112. 7( d). Section 112. 7( d) contains the measures which a facility owner or operator must undertake when the secondary containment required by §112.7( c) or (h)( 1), or the secondary containment provisions in the rule found at §§ 112.8( c)( 2), 112.8( c)( 11), 112.9( c)( 2), 112.10( c), 112.12( c)( 2), 112.12( c)( 11), 112.13( c)( 2), and 112.14( c), are not practicable. Those measures are expressly tailored to address the lack of secondary containment at a facility. They include requirements to: explain why secondary containment is not practicable; conduct periodic integrity testing of bulk storage containers; conduct periodic integrity and leak testing of valves and piping; provide in the Plan a contingency plan following the provisions of 40 CFR part 109; and, provide a written commitment of manpower, equipment, and materials to expeditiously control and remove any quantity of oil discharged that may be harmful. Therefore, when an owner or operator seeks to deviate from secondary containment requirements, §112.7( d) will be the applicable "deviation" provision, not §112.7( a)( 2).

Deviation submission. We agree with the commenter that submission of a deviation to the Regional Administrator is not necessary and have deleted the proposed requirement. We take this step because we believe that the requirement for good engineering practice and current inspection and reporting procedures (for example, §112. 4( a)), followed by the possibility of required amendments, are adequate to review Plans and to detect the flaws in them. Upon submission of required information, or upon on site review of a Plan, if the RA decides that any portion of a Plan is 153 inadequate, he may require an amendment. See §112.4( d). If you disagree with his determination regarding an amendment, you may appeal. See §112.4( e).

RA oversight. Once an RA becomes aware of a facility's SPCC Plan as a result on an on site inspection or the submission of required information, he is to follow the principles of good engineering practice and not overrule a deviation unless it is clear that such deviation fails to afford equivalent environmental protection. This does not mean that the deviation must achieve "mathematical equivalency," as one commenter pointed out. But it does mean equivalent protection of the environment. We encourage innovative techniques, but such techniques must also protect the environment. We also believe that in general PEs will seek to protect themselves from liability by only certifying measures that do provide equivalent environmental protection. But the RA must still retain the authority to require amendments for deviations, as he can with other parts of the Plan certified by a PE.

Not covered under the deviation provision. Deviations under §112.7( a)( 2) are not allowed for the general and specific secondary containment provisions listed above because §112.7( d) contains the necessary requirements when you find that secondary containment is not practicable. We have amended both this paragraph and §112.7( d) to clarify this. Instead, the contingency planning and other requirements in §112.7( d) apply. Deviations are also not available for the general recordkeeping and training provisions in §112.7, as these requirements are meant to apply to all facilities, or for the provisions of §112.7( f) and (j). We already provide flexibility in the manner of record keeping by allowing the use of ordinary and customary business records. Training and a discussion of compliance with more stringent State rules are essential for all facilities. Therefore, we do not allow deviations for these measures.

X  C: Plan information  §112.7( a) and (b)

Background: In 1991, in §112.7( a)( 1), we reproposed the requirement in the current §112.7 introductory paragraph that the Plan must follow the sequence outlined in §112. 7, and include a discussion of how the facility conforms with the requirements listed in the rule.

In proposed §112.7( a)( 3)( i)( ix), we clarified which facility characteristics which the owner or operator must describe in the Plan, including unit by unit storage capacity; type and quantity of oil stored; estimates of quantity of oils potentially discharged; possible spill pathways; spill prevention measures; spill control measures; spill countermeasures; provisions for disposal of recovered materials; and a contact list with appropriate phone numbers. We also proposed a requirement for a facility diagram on which the location and contents of all tanks would be marked.

Under proposed §112.7( a)( 4), an owner or operator would have to provide documentation in the Plan that would enable a person reporting a spill to provide spillspecific information, including the exact address and phone number of the facility; the spill date and time; the type of material spilled; estimates of the total quantity spilled; 154 estimates of the quantity spilled into navigable water; the spill's source; a description of the affected medium; the spill's cause; any damages or injuries caused by the spill; actions being used to stop, remove, and mitigate the effects of the discharge; whether an evacuation may be needed; and the names of individuals and/ or organizations who had also been contacted.

Current §112.7( b) requires that, where experience indicates a reasonable potential for equipment failure (e. g., tank overflow, rupture, or leakage), the owner or operator must include in the Plan a prediction of the direction, rate of flow, and total quantity of oil that could be discharged from the facility as a result of each major type of failure. In §112.7( b), we proposed to clarify that the requirements for discharge prediction were not contingent on the past spill experience of a facility.

X C 1 Facility physical description and diagram  §112.7( a)( 3)

Background: In 1991, in §112.7( a)( 3), we proposed to require that a Plan include a facility diagram on which are marked the location and contents of all tanks. We also proposed to require that an owner or operator address in the Plan the essential facility characteristics listed in §112.7( a)( 3)( i)( ix).

Comments: Support for proposal. "GM supports the proposed SPCC plan requirements detailing physical attribute of the facility, such as capacity, types of oil, pathways, etc." (76, 90)

Opposition to proposal. "Overall, for large facilities such as refineries, the amount of detail required in 112.7( a)( 3) is unreasonable, very resource intensive to compile and too voluminous for Agency staff to assimilate or evaluate. API believes the level of detail required will add little value to the Plan for large facilities such as refineries." (67) Contents of tank. "However, including the contents of the tanks on the diagram is not practical. First, many of the tanks are used for different products depending on seasonal fluctuations and other market demands; and by other proposed changes the plan would require amendment for each such change. Secondly, if there are more than just a handful of tanks, it is difficult for a new visitor to a facility to identify which tank contains products which are potentially explosive, reactive, corrosive, or otherwise dangerous to emergency spill response." (76, 92)

Containers not storing oil. Asks whether "exempt ASTs which do not contain oil" should be marked on a facility diagram. "It would seem consistent with the reasoning for showing tanks exempt due to their UST status (i. e., emergency response crews would be able to identify oil containing tanks from those with other materials.)" (62)

Risk. Suggests "Alternative wording, such as `... indicate the type of product (crude oil, gasoline, acid, etc.) or other information as necessary to expediently evaluate the relative hazards presented' would be more appropriate. In addition, 155 requiring recommending methods to readily identify such tanks by on tank displays would be prudent as well." (76)

Facility diagram  De minimis containers. "112.7( a)( 3) Requirement for plan to describe location and contents of all tanks will be unwieldy if even very small containers must be included. Request that de minimis level exemptions be established." (62, 66, 125, 179, 184)

660 gallons. "API believes tanks with less than capacity of 660 gallons should not be included on the facility diagram. These tanks are excluded from current SPCC regulations and mandating inclusion of such tanks would make the facility diagram less useful due to increased clutter. The cost of preparing the diagram would also increase substantially. Furthermore such tanks are often portable, making inclusion on a facility diagram impractical." (67)

Facility diagram, exempt materials. Asks whether exempt USTs which do not contain oil should be marked on facility diagrams. "It would seem consistent with the reasoning for showing tanks exempt due to their UST status (i. e., emergency response crews would be able to identify oil containing tanks from those with other materials.)" (62) "Subjecting otherwise exempt facilities to the requirements for ... facility diagrams (112.7( a)( 3)) is unreasonable considering the negligible risk posed by facilities `not reasonably expected to discharge oil'." (167)

Facility diagram  Transfer stations, connecting pipes, and USTs. We should require an owner or operator to include in the Plan a diagram that shows transfer stations and connecting pipes. (111)

General description of characteristics.

Approved substances. "... BP proposes that facility storage tank diagrams be required to show the location of tanks and products approved to be stored in that type of storage tank (ie. cone roof, internal or external floating roof, heated, etc.). A list of possible substances (gasolines, diesel fuels, residual oils, crude oils, etc.) approved to be stored in each tank or type of tanks would be indicated on the facility diagram or elsewhere in the SPCC Plan. The log book and facility status board would then provide information on the current contents of each tank." (96)

Facility based information. We should require that the owner or operator address §112.7( a)( 3) information "on a facility basis." "This addition would clarify the detail needed for the Plan and make it consistent with the type of information required in the Section 112.1( e), notification requirements. Since storage capacity and type and quantity stored in each tank is not required in the notification requirements, it should not be required in this Plan." (67) 156 Numbered list. Would revise §112.7( a)( 3) to read: "The complete plan must describe the facility's physical plant and include a facility diagram, which must indicate the location of all tanks which shall be numbered, and it must be accompanied by a separate list of all the numbered tanks. Those tanks in oil service must have their contents listed after the tank number on the tank list. A facility shall maintain an up to date list of tank contents as part of theSPCC plan and shall furnish it to EPA upon request. If tanks have been removed or added to a facility, the facility must submit a new tank diagram and a list of numbered tanks which states the contents of those in oil service." (143)

Potential to contaminate navigable water. "EPA should provide additional clarification that the required facility diagram is intended to be of a level of detail to support the evaluation of the potential for an oil spill to reach navigable water and that a block diagram of only those facility components directly related to this risk (e. g., non process equipment) is the minimum performance standard." (L12)

Physical description of facility. "Descriptions of the physical plant at a facility are provided under many existing state regulatory schemes. Once again, the Agency is urged to develop a better approach to working with State regulatory authorities instead of redoubling the burden on the regulated community." (42)

Response requirements. We should separate response plan requirements from spill prevention plan requirements, removing all response plan requirements from §§ 112. 7( a)( 3)( viii) and (ix), (a)( 4), and (a)( 5) and grouping them in another section containing only response plan requirements. (121)

Small facilities.

Small production facilities. "OOGA believes that the facility diagram requirement will be extremely burdensome to the small entity with no real environmental benefit, and particularly on the crude oil production facility owner who would be obligated to construct one for each of its facilities. Once again, for the reasons set forth above, OOGA requests that USEPA exempt these small facilities from the exception." (28, 31, 58, 70, 86) Such a requirement would add two hours to the facility review process. (70) This requirement would be burdensome and of limited value because many facilities have only one tank. We should allow more time for an owner or operator to comply or require him to create a facility diagram by the end of the three year review process. (101)

Specific Plan requirements. We should require the owner or operator to address the requirements, where applicable, listed in §§ 112.8, 112.9, 112.10, and 112.11 in the Plan. (121)

Response: Support for proposal. We appreciate the commenter support. 157 General description of characteristics. The following characteristics must be described on a per container basis: the storage capacity of the container, type of oil in each container, and secondary containment for each container. The other characteristics may be described on a facility basis. Based on site inspections and professional judgment, we disagree that these requirements are too resource intensive. The major new requirement in §112.7( a)( 3) is the facility diagram. Based on site inspections and professional judgment, we estimate unit costs for compliance with this section to be $33 for a small facility, $39 for a medium facility, and $5 for a large facility. Large facilities are assumed to already have a diagram that may be attached to the SPCC Plan. The other items mentioned in §112.7( a)( 3)  storage capacity of each container, prevention measures, discharge controls, countermeasures, disposal methods, and the contact list  are already required under the current rule or required by good engineering practice. As described in the Information Collection Request for this rule, the cost of Plan preparation includes these items, e. g., field investigations to understand the facility design and to predict flow paths and potential harm, regulatory review, and spill prevention and control practices.

Providing information on a container specific basis helps the facility to prioritize inspections and maintenance of containers based on characteristics such as age, capacity, or location. It also helps inspectors to prioritize inspections of higher risk containers at a facility. Container specific information helps an inspector verify the capacity calculation to determine whether a Plan is needed; and, helps to formulate contingency planning if such planning is necessary.

Facility diagram. The facility diagram is important because it is used for effective prevention, planning, management (for example, inspections), and response considerations and therefore we believe that it must be part of the Plan. The diagram will help the facility and emergency response personnel to plan for emergencies. For example, the identification of the type of oil in each container may help such personnel determine the risks when conducting a response action. Some oils present a higher risk of fire and explosion than other than less flammable oils.

Inspectors and personnel new to the facility need to know the location of all containers subject to the rule. The facility diagram may also help first responders to determine the pathway of the flow of discharged oil. If responders know possible pathways, they may be able to take measures to control the flow of oil. Such control may avert damage to sensitive environmental areas; may protect drinking water sources; and may help responders to prevent discharges to other conduits leading to a treatment facility or navigable waters. Diagrams may assist Federal, State, or facility personnel to avoid certain hazards and to respond differently to others.

The facility diagram is necessary for all facilities, large or small, because the rationale is the same for both. While some States may require a diagram, others do not. SPCC is a Federal program specifying minimum requirements, which the States may supplement with their own more stringent requirements. We note that State plans may be used as SPCC Plans if they meet all Federal requirements, thus avoiding any 158 duplication of effort if the State facility diagram meets the requirements of the Federal one.

Facility diagram  container contents. The facility diagram must include all fixed (i. e., not mobile or portable) containers storing 55 gallons or more of oil and must include information marking the contents of those containers. If you store mobile containers in a certain area, you must mark that area on the diagram. You may mark the contents of each container either on the diagram of the facility, or on a separate sheet or log if those contents change on a frequent basis. Marking containers makes for more effective prevention, planning, management, and response. We disagree that a list of products approved for storage in the container is sufficient for emergency response. While a document outlining what materials might be stored in a container is useful, it does not say what is actually in it at a particular time. For example, a responder may take one type of emergency measure for one type of oil, and another measure for another type. As noted above, oils differ in their risk of fire and explosion. Gasoline is highly flammable and volatile. It presents the risk of fire and inhalation of vapors when discharged. On the other hand, motor oil is not highly flammable, and there is no inhalation of vapors hazard associated with its discharge.

In an emergency, the responder may not have container content information unless it is clearly marked on a diagram, log, or sheet. For emergency response purposes, we also encourage, but do not require you to mark on the facility diagram containers that store CWA hazardous substances and to label the contents of those containers. When the contents of an oil container change, this may or may not be a material change. See the discussion on §112.5( a).

Facility diagram  De minimis containers. We have established a de minimis container size of less than 55 gallons. You do not have to include containers less than 55 gallons on the facility diagram.

Facility diagram  Transfer stations, connecting pipes, and USTs. We agree that all facility transfer stations and connecting pipes that handle oil must be included in the diagram, and have amended the rule to that effect. This inclusion will help facilitate response by informing responders of the location of this equipment. The location of all containers and connecting pipes that store oil (other than de minimis containers) must be marked, including USTs and other containers not subject to SPCC rules which are present at SPCC facilities. Again, this is necessary to facilitate response by informing responders of the location of these containers.

Physical description of facility. We appreciate the commenter's support. In the final rule, we have changed the requirement for a description of the "physical plant" of the facility to a description of the "physical layout" of the facility. If the owner or operator has provided that information in a State plan, he may use the same information in his Federal SPCC Plan if the State requirement is cross referenced to the Federal requirement. 159 Response requirements. We generally agree that response plan requirements should be separate from spill prevention plan requirements. However, the information required in §112. 7( a) facilitates response to an emergency and is necessary for all facilities. Because a facility with a response plan already documents the required information, we have therefore have exempted any such facility from documenting certain information required for SPCC facilities in §112. 7( a). See, for example, revised §112. 7( a)( 3), (4), and (5). We disagree that there is no need for §112.7( d). The Minerals Management Service (MMS) is not responsible for all offshore oil production facilities. Offshore facilities in the inland area fall under EPA jurisdiction. (See EO 12777.)

Specific Plan requirements. We agree that an owner or operator should address specific requirements applicable to a facility. Section 112. 7( a)( 1) requires a facility owner or operator to discuss how a facility conforms with part 112 requirements. Furthermore, the introductions to §§ 112.8, 112.9, 112.10, 112.11, 112.12, 112.13, 112.14, and 112.15 reference the obligation to address both general and specific requirements for the facility.

X C 2 Unit by unit storage capacity  §112.7( a)( 3)( i)

Background: In 1991, in §112.7( a)( 3)( i), we proposed to require that an owner or operator address unit by unit storage capacity in the Plan.

Comments: Minimum size. We should specify a minimum size for units that owners or operators must include in the Plan. (62, 66, 79, 125, 164, 170, 184)

Small sizes.

Opposition to proposal. Requiring owners or operators to itemize small units would be unnecessarily costly and burdensome with little to no additional environmental benefit. (62, 66, 125, 164, 170)

Alternative sizes suggested.

660 gallons or less. Tanks containing greater than 660 gallons. (92,125, 164)

10,000 gallons  electrical equipment. Electrical equipment containing greater than 10,000 gallons of oil or dielectric fluid. (125, 170, 184) If small pieces of equipment at electrical substations "catastrophically" fail, they do not fail synergistically and create other failures. We should not focus on controlling spills from small pieces of equipment that are only a few gallons and are quickly cleaned up. (164)

Mobile containers. According to the proposed requirement, an owner or operator would have to revise the Plan every time a drum of oil was received or a piece of oil containing manufacturing equipment was moved within the facility. (79) 160 "Unit." We did not define the term unit, and we should clarify whether we meant tank by tank storage capacity. (28, 31, 101, 165, L15)

Response: Minimum size. Under §112.1( d)( 5) of the final rule, part 112 does not apply to aboveground or completely buried containers with an oil storage capacity of less than 55 gallons. Therefore, the owner or operator need not include in the Plan containers smaller than 55 gallons. If the containers move frequently, the owner or operator may mark the location of those containers on a separate sheet or log. Movement of containers may or may not be a material change in the Plan requiring amendment, depending on whether the move increases or decreases the risk of a discharge.

"Unit." For clarity, we have changed the term unit by unit storage capacity to type of oil in each container and its storage capacity.

X C 3 Type and quantity of oil stored  proposed §112.7( a)( 3)( ii)

Background: In 1991, in §112.7( a)( 3)( ii), we proposed to require an owner or operator to address in the Plan the type and quantity of oil stored at the facility.

Comment: "Because the way a tank is used changes often and the adequacy of response to an accidental discharge does not hinge on the type of oil stored, Conoco cannot support this requirement." (75)

Response: We have eliminated proposed §112.7( a)( 3)( ii) in the final rule because it repeats information requested in revised §112.7( a)( 3)( i) We disagree with the assertion that the responder's knowledge of the type of oil stored does not affect the adequacy of response. Responders use different emergency measures for different types of oil.

X C 4 Estimates of quantities of oil potentially discharged  proposed §112.7( a)( 3)( iii)

Background: In 1991, in §112.7( a)( 3)( iii), we proposed a requirement that an owner or operator address estimates of the quantity of oils that could be discharged.

Comments: See section XI C– 12 of this document for the comments on this paragraph.

Response: We have eliminated proposed §112.7( a)( 3)( iii) in the final rule because it repeats information sought in §112.7( b) regarding "a prediction of the direction, rate of flow, and total quantity of oil that could be discharged." We address substantive comments under the discussion of that paragraph. 161 X C 5 Spill pathways  proposed §112.7( a)( 3)( iv)

Background: In 1991, in §112.7( a)( 3)( iv), we proposed to require an owner or operator to address possible spill pathways in the Plan.

Comments: See section XI C 12 of this document for comments on this issue.

Response: We have eliminated proposed §112.7( a)( 3)( iv) in the final rule because it repeats information sought in final §112.7( b), which asks for "a prediction of the direction, rate of flow, and total quantity of oil that could be discharged" as a result of each type of major equipment failure. We address the substantive comments under the discussion of that provision.

X C 6 Spill prevention measures  §112.7( a)( 3)( ii)

Background: In 1991, in §112.7( a)( 3)( v), redesignated in the final rule as §112.7( a)( 3)( ii), we proposed to require the owner or operator to address in the Plan spill prevention measures, including procedures for routine handling of products.

Comment: We should replace §112.7( a)( 3)( v) with the words secondary containment. (121)

Response: We adopted the term discharge prevention measures in the final rule rather than secondary containment, because the term encompasses both secondary containment and other discharge prevention measures.

X C 7 Spill controls and secondary containment  §112.7( a)( 3)( iii)

Background: In 1991, in §112.7( a)( 3)( vi), redesignated in the final rule as §112. 7( a)( 3)( iii), we proposed to require that the owner or operator address in the Plan spill controls such as secondary containment around tanks and other structures, equipment, and procedures for the control of a discharge.

Comments: Drainage controls. We should replace this provision with the requirement that owners or operators address "other drainage control features, and the equipment (pipes, pumps, meters, etc.) which they protect." (121)

NASA standards. The National Aeronautics and Space Administration's (NASA's) Scientific and Technical Information (STI) Program standards should meet this spill control requirement. (140)

Underground piping, completely buried tanks. We should clarify that underground piping does not need secondary containment. (57)

Response: Drainage controls. We agree with the commenter. In the final rule, we have revised the requirement to refer to discharge or drainage controls to clarify that 162 drainage systems or diversionary ponds could serve as alternative means of secondary containment.

NASA standards. An owner or operator may follow STI standards for spill control if they meet part 112 requirements, but must discuss in the Plan how those standards meet these requirements.

Underground piping, completely buried tanks. Underground piping is subject to the secondary containment requirements in §112.7( c). Whether you install secondary containment around such piping involves issues of practicability and the reasonable possibility of a discharge as described in §112. 1( b). The same rationale applies to completely buried storage tanks.

X C 8 Spill countermeasures  §112.7( a)( 3)( iv)

Background: In 1991, in §112.7( a)( 3)( vii) (redesignated as §112.7( a)( 3)( iv) in the final rule), we proposed to require the owner or operator to address in the Plan spill countermeasures for spill discovery, response, and clean up (facility's capability and those that might be required of a contractor).

Comments: Contingency planning. "For clarity, EPA should consider trying to consolidate the contingency planning requirements located in these paragraphs. For example, 112.7( b) required a prediction of total quantity of oil that could be released and prediction of the direction of flow. This same information is already required under 112. 7( a)( 3)( iii) and (iv). In 112. 7( a)( 3)( vii) spill countermeasures for spill discovery, response, and cleanup are required. It appears that this same type of information is again required under 112.7( d)( 1) where a contingency plan including a description of response plans, personnel needs, and methods of mechanical containment are required." (16)

Editorial suggestion. We should change this provision to require the owner or operator to address "prevention, control, or countermeasure features, other than secondary containment and drainage control, and the equipment which they protect" in the Plan. (121)

Response: Contingency planning. We disagree that these provisions are duplicative. Each section requires discrete information. Section 112.7( a)( 3)( iv) requires information concerning a facility's and a contractor's capabilities for discharge discovery, response, and cleanup. We also note that §112.7( b) requires information concerning the potential consequences of equipment failure. Section 112.7( d)( 1) requires a contingency plan following the provisions of part 109, which includes coordination requirements with governmental oil spill response organizations.

Editorial suggestion. We disagree with the suggestion. We believe the language we proposed, as revised, better captures the information we are seeking. Our revised language refers to discovery, response, and cleanup, which are features that are 163 absent from the commenter's suggestion, and for which a discussion in the Plan is necessary in order to be prepared for any discharges.

X C 9 Disposal of recovered materials  §112.7( a)( 3)( iv)

Background: In 1991, in §112.7( a)( 3)( viii) (redesignated as §112.7( a)( 3)( v) in the final rule), we proposed to require the owner or operator to address the disposal of recovered materials in the Plan.

Comments: Support for proposal. "Conoco supports the requirement that the plan address applicable state laws, federal laws, and disposal options. However, it would be neither feasible nor useful to discuss particular alternatives." (75)

Opposition to proposal.

Certification. "Detailed provisions for disposal of recovered materials is unreasonable for manufacturing facilities which may have small quantities of many types of oil and petroleum materials. A certification that disposal will be in compliance with all federal and state regulations should be sufficient for `small size' facilities." (62)

Regulatory duplication. "APC believes that the disposal of material recovered are regulated by State law and/ or RCRA and a discussion of this subject in the Plan is inappropriate." (58, 66, 125, 164, 170, L12)

Specific options. "The proposed regulations seem to require that commitments be made for specific disposal options for wastes which have not been generated. The federal and state solid waste disposal options and requirements are complex and changing. We suggest that disposal commitments in the SPCC Plan be limited to a statement which commits to disposal of wastes in accordance with applicable regulatory requirements." (70, 75, 92, 125, L12)

Unnecessary. "SPCC Plans prepared under the current regulation do not require this information. Furthermore, such practices may already be included in other Plans such as Best Management Practices Plans or RCRA Contingency Plans." (79) The issue of waste disposal does not belong in a document designed to address preventing oil contamination to navigable waters. (164) We should clarify why we have included this new provision. The disposal of oil spill clean up waste does not impede spill containment or clean up activities. (L12)

Authority. We do not have the authority under the CWA to request this information. (28, 58) 164 Bioremediation. "On site bioremediation would be a much more economical and practical means of cleaning up an oil spill to achieve an equivalent environmental benefit." (101, 113)

Costs. The requirement to address disposal of recovered materials in the Plan may have major cost implications. (31, 165, L15)

Recycling. "...( W) e also believe the SPCC regulation should encourage recycling of spilled oil to the extent possible." (61)

Response: Support for proposal. We appreciate the commenter support.

Applicability, necessity for proposal. This provision applies to all facilities, including mobile facilities, because proper disposal of recovered materials helps prevent a discharge as described in §112.1( b) by ensuring that the materials are managed in an environmentally sound manner. Proper disposal also assists response efforts. If a facility lacks adequate resources to dispose of recovered oil and oil contaminated material during a response, it limits how much and how quickly oil and oil contaminated material is recovered, thereby increasing the risk and damage to the environment. A commitment to dispose of materials in accordance with applicable laws is by itself insufficient, because we need evidence of actual methods employed.

Onshore or offshore mobile drilling and workover rigs. We disagree that either onshore or offshore mobile drilling and workover rigs should be exempted from this requirement because the information necessary to this requirement is not always site specific, and may be included in a general plan for a mobile facility.

Authority. Under section 311( j)( 1)( C) of the CWA, we have authority to establish procedures, methods, equipment, and other requirements to prevent and contain oil discharges. Collecting information on disposal of recovered materials is a procedure or method to help prevent or contain discharges.

Bioremediation. We disagree that this paragraph would preclude bioremediation efforts, as some commenters suggested. Bioremediation may be a method of proper disposal.

Cost. Because it does nothing more than require that you explain the method of disposal of recovered materials, we also disagree that this provision is too costly. Also, we assume that good engineering practice will in many cases include a discussion of such disposal already. By describing those methods in the Plan, you help ensure that the facility has done the appropriate planning to be able to dispose of recovered materials, should a discharge occur.

Editorial suggestion. We disagree that we should replace the proposed language with language requiring that the owner or operator dispose of materials in accordance with 165 proper State and Federal regulations. Our proposed language captures both State and Federal regulations and is more succinct.

Recycling. We support the recycling of spilled oil to the extent possible, rather than its disposal. For purposes of this rule, disposal of recovered materials includes recycling of those materials.

Regulatory duplication. The paragraph merely requires that you discuss the methods employed to dispose of recovered materials; it does not require that materials recovered be "disposed" of in any particular manner nor is it an independent requirement to properly dispose of materials. Thus, there is no infringement on or duplication of any other State or Federal program or regulatory authority.

X C 10 Contact list  §112.7( a)( 3)( vi)

Background: In 1991, in §112.7( a)( 3)( ix), redesignated in the final rule as §112.7( a)( 3)( vi), we proposed to require that an owner or operator include in the Plan a contact list and phone numbers for the facility response coordinator, the National Response Center (NRC), clean up contractors, fire departments, the LEPC, the SERC, and downstream water suppliers.

Comments: Support for proposal. "The inclusion of an `Emergency Contact List' is appropriate. Kerr McGee E& P/ USO (United States Onshore) SPCC Plans include such a proposed Emergency Contact List." (27, 90, 114, L11)

Agreement for response. We should change our proposal to require that the owner or operator identify the following: "Each cleanup contractor that has agreed in writing... to respond to a spill at the facility, the period of time that the cleanup contractor's commitment is valid, an enumeration of the types of spills to which each cleanup contractor is licensed to remediate, and the listing of the license number( s) and license expiration date( s) for each cleanup contractor." Otherwise, many owners or operators will not check whether the clean up contractor list is current. (47)

Applicability.

Mobile facilities. Because they move from site to site, we should exempt an owner or operator of an onshore and offshore mobile drilling and workover rigs from our §112.7( a)( 3)( vii)( ix) requirements to list spill countermeasures, contact lists, and material disposal methods in the Plan. (128)

Authority. We do not have the authority under the CWA to require the owner or operator to list State emergency response phone numbers in this provision of the Plan. Such a requirement is within the State's exclusive authority. (58)

Downstream water suppliers. 166 Affected by a discharge. "This requirement should be modified to make clear that only downstream water suppliers who might reasonably be affected by a discharge must be notified." (28, 31, 92, 101, 125, 165, 170, 189, L02, L15)

Alternatives to notice. "In addition, the facility operator should be given the option of notifying the local entities such as the local emergency planning committee and leave the notification of individual water suppliers to that body." (62, 66, 92, 125, 170, 189)

Basis for estimates. We should base the applicability of §112. 7( a)( 3)( ix) on estimates of quantities of oils potentially discharged. (28)

Case by case determination. An owner or operator should assess each spill, and determine case by case which downstream water suppliers to notify. (66)

Central registry of suppliers. "Where does an operator obtain a list of water suppliers? Water suppliers should be located in a central registry to help operators discover who they are." (28, 31, 165, L15)

Distance. "There must be a downstream distance limit placed on this based on estimates of quantities of oil potentially discharged. This should not include private wells." (28, 31, 92, 101)

"Endless" list. A list of downstream water suppliers could be endless. The LEPC or the U. S. Coast Guard should determine which downstream water suppliers to alert. (164)

Suppliers of record. Only "water suppliers of record" should be notified. (31, 165, L15)

Unnecessary requirement. This requirement is unnecessary and costly for Appalachian producers. (101) Local and State emergency response authorities already collect all information regarding downstream water suppliers pursuant to the Federal Emergency Planning and Community Right to Know Act, and regulations promulgated thereto. This paragraph should be deleted and removed to a response plan section because the information called for requires response information. (62, 189)

Whom should be notified.

Agencies notified of accidental discharges. In keeping with the SPCC Program's focus on accidental discharge prevention and response, we should require that the contact list include only those State and Federal agencies that must be notified of an accidental oil discharge. (75) 167 LEPC, SERC, USCG. We should require owners or operators to include only the LEPC, SERC, and the U. S. Coast Guard in the contact list. (164)

Response: Support for proposal. We appreciate commenter support.

Agreement for response. In response to a comment, we have amended the rule to require that the cleanup contractor listed must be the one with whom the facility has an agreement for response that ensures the availability of the necessary personnel and equipment within appropriate response times. An agreement to respond may include a contract or some less formal relationship with a cleanup contractor. No formal written agreement to respond is required by the SPCC rule, but if you do have one, you must discuss it in the Plan.

Applicability, mobile facilities. We disagree that either onshore or offshore mobile drilling and workover rigs should be exempted from this requirement because the information necessary to this requirement is not always site specific, and may be included in a general plan for a mobile facility.

Authority. We have ample authority to ask for information concerning emergency contacts under the CWA because it is relevant to the statute's prevention, preparedness, and response purposes. CWA section 311( m)( 2). Furthermore, it is an appropriate question for all facilities, including mobile facilities, because it is necessary to prepare for discharges and to aid in prompt cleanup when they occur. Having a Plan which contains a contact list of response organizations is a procedure and method to contain a discharge of oil as specified in CWA section 311( j)( 1)( C).

Downstream water suppliers. We have deleted the reference to "downstream water suppliers" (i. e., intakes for drinking and other waters) because facilities may have no way to identify such suppliers. We agree with commenters that identifying such suppliers is more a function of State and local emergency response agencies. We note, however, that facilities that must prepare response plans under §112.20 must discuss in those plans the vulnerability of water intakes (drinking, cooling, or other).

Response section. We disagree that the information should be placed in a response section, because most SPCC facilities are not required to have response plans, and the information is necessary to prepare for response to an emergency.

Whom should be notified. We have eliminated references to specific State and local agencies in the event of discharges in favor of a reference to "all appropriate State and local agencies." "Appropriate" means those State and local agencies that must be contacted due to Federal or State requirements, or pursuant to good engineering practice. You may not always be required to notify fire departments, local emergency planning committees (LEPCs), and State emergency response commissions (SERCs), nor as an engineering practice do they always need to receive direct notice from the facility in the event of a discharge as described in §112. 1( b). At times they might, but they might also receive notice from other sources, such as the National Response 168 Center. Other State and local agencies might also need notice from you. We have added the word "Federal" to the list of all appropriate contact agencies because there are times when you must notify EPA of certain discharges. See §112.4( a). There might also be requirements under other Federal statutes, other than the CWA, for notice in such emergencies.

X C 11 Spill reporting requirements  §112.7( a)( 4)

Background: In 1991, in §112.7( a)( 4), we proposed to require that the owner or operator include in the Plan documentation enabling a person reporting a spill to provide essential information.

Comments: Opposition to proposal, necessity for it. We should not expand the Plan content requirements if we seek to simplify the Plan. Provisions such as the spill reporting requirements in (a)( 4) "frustrate any attempts to clarify the regulatory framework." (42) We should: "Delete and remove to response plan." (117, 121)

Documentation. Rather than requiring an owner or operator to provide documentation in the Plan, we should require that "the information addressed in the Plan shall enable a person" to report a spill in accordance with the rest of the paragraph's requirements. By requiring documentation, we would decrease the Plan's usefulness as an emergency response tool. (75)

Delayed reporting. We should not require documentation that may be unavailable to the person initially reporting the spill, or highly speculative. If we require this information from the spill reporter, notification from the facility may be less prompt. (16)

Future event. "It is not possible to provide `documentation in the Plan' which will enable a person reporting a spill to provide information on the spill date, time, type of materials spilled, estimation of the total quantity spilled, etc., if the spill has not happened. Suggest that this section be qualified to indicate that a form for collecting such information be included either in the plan, or for `small size facilities' in the HAZWOPER reporting matrix." (62)

Inapplicable information. Some of the information we would require may not apply to a wide variety of facilities. (167, 175)

Unavailable information. "Not all of the information listed for the purposes of reporting a release will be `available' to the person reporting the discharge or `applicable' to the discharge incident or to the facility at which the release took place." (67, 85, 117, 167, 175)

Editorial suggestion. We should replace the word spill with the word discharge or release. A spill does not necessarily result in a discharge or a release to navigable 169 waters, and we should not require reporting when a spill or leak has been fully contained. (39)

Facility address and phone number. Many facilities have no address or telephone. We should require that an owner or operator provide the facility location rather than the address and phone number. (28, 67, 70, 128, 133, 167, L12)

Response plan. "This is part of response. Delete and remove to response plan." (121)

State requirements. The spill reporting provision duplicates State regulations. (167)

Response: Opposition to proposal, necessity for it. We disagree that we should eliminate a requirement to provide information and procedures concerning the cause of a discharge or its effects. Such information and procedures in the Plan is necessary to enable a person reporting a discharge to accurately describe information concerning that occurrence to the proper persons in an emergency.

Documentation. We agree with commenters that the word "documentation" is inappropriate because it refers to a past event. Accordingly, as suggested by commenters, we have revised the rule to provide for "information and procedures" that would assist the reporting of discharges as described in §112.1( b). "Information" refers to the facts which you must report, and "procedures" refers to the method of reporting those facts. Such procedures must address whom the person relating the information should call, in what order the caller should call potential responders and others, and any other instructions necessary to facilitate notification of a discharge as described in §112.1( b). If properly noted, the information and procedures in the Plan should enable a person reporting a discharge to accurately describe information concerning that occurrence to the proper persons in an emergency. Any information or procedure not applicable will not have to be used. Available information on a discharge must be reported. Applicable procedures must be followed. And of course, any information that is not available cannot be reported.

Editorial suggestion. In the final rule we have replaced spill with the term "discharge of oil as described in §112.1( b)." If a discharge is fully contained and never reaches navigable water or adjoining shorelines, it need not be reported.

Facility address and phone number. In the final rule we have changed address to address or location because some facilities do not have an exact address. Location may mean the longitude and latitude of the facility or some other identifiable means of pinpointing the facility. The phone number must be accurate, if the facility has a phone. Of course, if the facility has no phone, that fact must be noted.

State requirements. While it is possible that this information may be duplicative of State requirements, the duplication is eliminated to the extent that you use your State SPCC Plan for Federal SPCC purposes. Where there is no State requirement, there is no duplication. 170 Response plan exemption. We disagree that this paragraph should be placed in a response section, because most SPCC facilities are not required to have response plans, and the information is necessary to prepare for response to an emergency. If your facility has prepared and submitted a response plan to us under §112.20, there is no need to document this information in your SPCC Plan, because it is already contained in the response plan. See §112.20( h)( 1)( i)( viii). Therefore, we have amended the rule to exempt those facilities with response plans from the requirements of this paragraph.

X C 12 Fault analysis  §112.7( b)

Background: Proposed §112.7( b) would require an analysis of the major types of failures possible in a facility, including a prediction of the direction, rate of flow, and total quantity of oil that could be discharged as a result of such failures.

Comments: Applicability.

Large facilities. "Such an effort with its associated risk assessment is very complex and is not needed for most regulated facilities. EPA should specify that such an analysis is only required for very large facilities with potential for major harm to nearby receptors. Small to medium sized facilities should limit such analyses to the identification of receptors located in spill pathways." (51, 62, 107, 165, 192, L15, L17)

Mobile facilities. We should exempt mobile facilities from the requirement that owners or operators include in the Plan site specific information on flow direction, rate of flow, and quantity of oil discharged. Site specific information changes when the equipment moves. (128)

Present rule adequate. "API believes that the current section 112.7( b) language is clearer and specifically focuses limited resources on situations for which there is a reasonable potential for a discharge. Limited resources should not be consumed in developing flow rate, direction and quantity predictions in the SPCC Plan for situations without a reasonable potential for discharge to navigable waters." (67, 85) The provision is useless and should be deleted. (28, 101, 164)

Editorial suggestions. We should replace possible spill pathways with most likely spill pathways to navigable waters. We should explain the need for this provision and allow public review of this explanation before publishing the final rule. The realm of potential pathways would be increased by the inclusion of the EPA recommended 25 year storm event. Our proposal would encourage an exploration and production (E& P) operator to exclude non oil storage portions of a facility in the Plan, which would increase the "oil pollution potential." (L12) 171 We should replace "direction... of oil... of each major type of failure" with the requirement that the owner or operator include a prediction of "the most likely spill to reach navigable waters." (L12)

Electrical equipment. Facilities with electrical equipment should be exempted from this analysis. (125)

Failure factors. The rule should clarify how detailed the analysis of potential spill pathways should be. (156)

Flowlines or gathering lines. Discharge estimates for these lines would be meaningless and requested that we clarify the provision. (28) For flowlines or gathering lines, it is impossible for the owner or operator to estimate the quantities of oil potentially discharged. (101)

Major failures. "First, EPA has not defined a major type of failure and would need to give the regulated community some guidance in this area. If it were tuned to bulk storage tanks, as defined above, this could address tank failures which have the capability of releasing 20, 000 or more gallons." (164)

Obvious scenarios. "This provision is totally unnecessary insofar as the Appalachian producers are concerned. It is overly involved for small operators to imagine every conceivable type of failure, and calls for a creative imagination in a place where such is not required. Only obvious scenarios, such as tank rupture or leakage are necessary considerations for anticipating cleanup efforts." (28, 31, 101, 175)

Small discharges. "Section 112.7( b) should be clarified to emphasize that the focus of the SPCC Plan should be on assuring that any release is prevented and mitigated, not just `major' releases. Facilities routinely experience and manage smaller releases, while major spills are comparatively rare." (175)

Spill history. We should clarify whether we intend to require predicting the number and degree of discharges based upon spill history. Predictions based on this history would be unreliable, and we should delete the provision. (143)

Response: Applicability. We agree with the commenter that current language is clearer and will retain it. We therefore modified the first sentence contained in the proposed rule. We agree that the Plan must only discuss potential failure situations that might result in a discharge from the facility, not any failure situation. The rule requires that when experience indicates a reasonable potential for failure of equipment, the Plan must contain certain information relevant to those failures. "Experience" includes the experience of the facility and the industry in general.

We disagree that the requirement is too difficult for owners or operators of small or mobile facilities, or of flowlines or gathering lines, or of electrical equipment facilities, or 172 other users of oil. We believe that a Professional Engineer may evaluate the potential risk of failure for the aforementioned facilities and equipment and predict with a certain degree of accuracy the result of a failure from each. We note that since we have raised the regulatory threshold, this requirement will not be applicable to many smaller facilities.

We also disagree that our proposal would encourage an exploration and production (E& P) operator to exclude non oil storage portions of a facility in the Plan, which would increase the "oil pollution potential." A description of the possible direction and rate of flow of discharged oil includes any area over which that oil may flow, including non oil portions of a facility.

Editorial suggestions. In final §112.7( b), we use the term "a prediction of the direction, rate of flow, and total quantity of oil which could be discharged" instead of the term "possible spill pathways."

Failure factors. To comply with this section, you need only address "major equipment" failures. A major equipment failure is one which could cause a discharge as described in §112. 1( b), not a minor failure possibility. To help clarify the type of equipment failures the rule contemplates, we have added examples of other types of failures that would trigger the requirements of this paragraph. Such other equipment failures include failures of loading/ unloading equipment, or of any other equipment known to be a source of a discharge. The analysis required will depend on the experience of the facility and how sophisticated the facility equipment is. If your facility has simpler equipment, you will have less to detail. If you have more sophisticated equipment, you will have to conduct a more detailed analysis. If your facility's experience or industry experience in general indicates a higher risk of failure associated with the use of that equipment, the analysis must also be more detailed. This rationale and analytic detail are also applicable to electrical equipment facilities and other facilities that do not store oil, but contain it for operational use. Again, the required explanation will be tailored to the type of equipment used and the experience with that equipment.

Spill pathways. The level of analysis concerning spill pathways will depend on the geographic characteristics of the facility's site and the possibility of a discharge as described in §112.1( b) that equipment failure might cause. However, the Professional Engineer should focus on the most obvious spill pathways. The level of analysis required for prediction of spill pathways is that which may be reasonably foreseen, given the physical location of the facility. We have not included a 25 year storm event standard in the rule, so that calculation may not be applicable.

Because this information is facility specific, the owner or operator of a mobile facility will not be able to detail spill pathways in the general Plan for the facility each time the facility moves. However, the owner or operator must provide management practices in the general Plan that provide for containment of discharges in spill pathways in a variety of geographic conditions likely to be encountered. In case of a discharge at a particular facility, the owner or operator would then take appropriate action to contain 173 or remove the discharge. For example, the Plan may provide that a rig must be positioned to minimize or prevent discharges as described in §112.1( b); or it may provide for the use of spill pans, drip trays, excavations, or trenching to augment discharge prevention.

X  D: Secondary containment  §112.7( c)

Background: Section 112.7( c) of the current rule lists appropriate containment and diversionary structures, or equipment, and among other things requires that dikes, berms or retaining walls be "sufficiently impervious to contain spilled oil." In 1991, we proposed to revise §112.7( c) to require that the entire containment system, including the walls and floor, must be impervious to oil for 72 hours.

Comments: Applicability.

Electric utilities. "Specifically, the Agency has recognized that it is often impracticable to provide at electrical substations the secondary containment required by proposed section 112.7( c)." (125)

Flowlines, fired vessels, pressured process vessels. "A statement should be included in the preamble to clarify that section 112.7( c) does not require dikes around flowlines, fired vessels or pressured process vessels at onshore producing facilities. Industry's current practice is to construct dikes primarily around storage tanks. We think that this constitutes `good engineering practice'." (125, 133)

Heavy oils. The requirement should not apply to tanks holding No. 5 and No. 6 fuel oils and asphalts. (54)

Mining sites. "The proposed containment requirements will be excessive for most mining operations and will require redesign in many instances with little resultant net environmental benefit." (35)

Mobile facilities. "Many of these tanks are moved from location to location on a daily basis. Many are too small to require a SPCC Plan or located at a site with sufficient oil capacity to require a SPCC Plan. Secondary containment may not be feasible in these situations." (190)

Phase in. We should adopt a phased in approach so that owners or operators would not have to comply immediately with this new provision. (31, 182)

Production facilities. We should exempt production facilities, and allow a contingency plan instead. (28, 31, 86, 165)

Underground piping. We should clarify that underground piping is not subject to the rule's secondary containment provisions. (71) 174 Contingency planning or containment.

Contingency plan alternative. We should revise the provision to allow owners or operators to use contingency planning in lieu of diking tanks or other equivalent measures. (110)

No equivalent. We should place greater emphasis on secondary containment as an oil storage method that has no equivalent. (121)

Editorial suggestions.

Primary containment system. We should define primary containment system. (71)

Surface waters. We should define the term surface waters. We should change surface waters to navigable waters to be consistent with the Clean Water Act. (54, 58, 67, 91, 133, 167, 175)

Floors. The impervious requirement should apply only to horizontal releases and not vertical releases, because vertical releases (releases into the ground) do not pose a risk to navigable waters. (48) We should omit any reference to containment "floors" in the final rule, because the purpose of the regulation is to prevent discharge to surface waters and not to ground water. (1155 (1993 commenter))

Impermeability.

Support for 72 hour standard. "Not only is this provision essential to the protection of surface water, it will provide some protection for groundwater. Improperly constructed dikes have resulted in several groundwater pollution problems of significant extent in this state. The Department has recently revised its rules to require relatively impervious dike structures at all sites storing any substance likely to cause pollution of a water of this state. No exemptions to this requirement should be granted because of facility size or quantity of oil stored." (4, 143, 185, L17).

Editorial suggestion. We should revise the standard as "impervious to oil and water for 72 hours." (80)

Opposition to 72 hour standard. (11, 25, 31, 35, 42, 48, 57, 66, 67, 71, 72, 74, 75, 78, 85, 86, 91, 101, 102, 110, 114, 116, 125, 155, 156, 164, 170, 173, 175, 177, 182, 184, L3, L30).

Current standard is adequate. The current "sufficiently impervious" standard was adequate. (31, 35, 42, 71, 78, 86, 92, 113, 155, L3) 175 No environmental benefit. If adopted, the 72 hour impermeability standard would require owners or operators to modify existing secondary containment structures. Owners or operators would spend a significant amount of money on these modifications for no additional environmental benefit. (11, 25, 28, 34, 35, 48, 58, 75, 90, 95, 101, 102, 110, 113, 139, 165, 167, 173, 175, 182, 1155 (1993 comment))

Alternate standards.

§112.8( c) standard. We should use the language proposed in §112.8( c)( 2) in §112.7( c). The §112.8( c)( 2) approach would permit some contamination of the containment system, without sanctioning an oil discharge to surface waters. (34, 77)

Containment instead. The rule should address containment rather than impermeability; the reason for a containment structure is to keep a discharge from reaching navigable waters. (25, 34, 74, 116, 164, 170, L30)

Containment or cleanup. We should give facilities a choice between renovating containment to be impervious for 72 hours and providing for the expedient clean up of a spill. (90)

Liners. "In lieu of a requirement for total imperviousness, specify acceptable liner materials such as compacted clay, plastic, asphalt or concrete, and corresponding levels of acceptable permeability." (107)

Monitoring. "While supporting this clarification, it should also be recommended that if a truly impervious containment is not provided, a check should be made of available geological records and documents, site conditions, etc., to assure that such conduits that may cause substantial migration of free product are appropriately monitored for discharges." (76)

Alternate time frames.

24 hours, manned facilities. Suggests language requiring the containment system to "be constructed to contain released oil for at least 24 hours" if it is "normally attended during typical work hours." "A requirement this strenuous is unnecessary in situations where personnel are present during a routine workweek." (183)

More than 24 hours, unmanned facilities. "As an alternative, this requirement should be revised such that it is applicable only to facilities that go unmanned for more than 24 hours at any one time." (102) 176 36 hours and inspections. In addition to the 72 hour standard, EPA should allow "alternate requirements which would allow for expedient cleanup of spills, e. g., within 36 hours, and/ or an increased frequency of inspections." (90)

72 hours; "As soon as practicable." "If the potential exists for the oil to reach surface waters, then immediate cleanup within 72 hours would be appropriate. For all other types of oil spills, it could be required that clean up measures should be initiated as soon as practicable with proper containment measures in place within 72 hours." (22, 125, L20)

"Duration of the emergency response." Containment structures should be "sufficiently impervious to retain oil for the duration of the emergency response." (75, 87)

No time limit. "The inclusion of a specific time frame is not necessary. While API would agree that 72 hour retention may be a realistic goal in most cases, we discourage the use of any specified amount of time applied universally and instead recommend that the SPCC regulations establish the intent and allow the regulated community the opportunity to meet that intent." (25, 66, 67, 78, 85, 91, 95, 102, 133, 175)

Applicability.

Attended facilities. The 72 hour standard is unnecessary for facilities that are attended 24 hours a day, because facility employees will find a spill within a few hours. (39, 48, 62, 87, 95, 102, 124, 125, 155, 173, 175, 182, L8, L30) This requirement should apply only to those facilities that are unattended. (183, L18) We should require the 72 hour standard only at a facility that is unmanned for more than 42 consecutive hours. (182)

Environmentally sensitive areas. Only owners or operators of facilities in environmentally sensitive areas (e. g., wetlands) should have to meet the 72 hour standard. (114)

New facilities only. The 72 hour impermeability requirement should apply to new facilities only. (165, 182, 192)

Calculation of 72 hours. Asks when 72 hours begins to run, from discovery of the discharge or time of occurrence. (82)

Clarification of "impervious" needed. We should further define "impervious to oil for 72 hours" in the proposed standard. (9, 34, 58, 67, 68, 70, 71, 76, 81, 83, 87, 91, 92, 95, 98, 101, 107, 114, 115, 117, 125, 133, 179, 182, 187, L2, L12) We should define impervious in terms of engineering standards. (27, 57, 87, 101, 114, 135, 175, 177, 186, 190) 177 Good engineering practice. We should revise the standard to make clear that the impervious determination should be based on good engineering practice. (125)

Showing impermeability. Asks how to prove that facility secondary containment systems are impervious. (10, 28, 58, 66, 101, 113, 125, 155, 156, 165, 179, 190) It would be too costly to prove that secondary containment systems were impervious. (28, 90, 101, 113, 165, 182)

Methods of secondary containment.

Alternative structures. Alternative secondary containment structures are impracticable at small facilities. (182)

Earthen structures. "An arbitrary requirement that a dike be `impervious' could be interpreted to require replacement of almost all of the existing containment systems for production locations, most of which have earthen dikes. Such containment systems prevent oil from migrating offsite to waters but may not be completely `impervious. ' Given the low level of risk presented by such facilities, with their typically low volumes of storage, IPAA does not believe that the proposed requirements are justified." (28, 31, 34, 39, 67, 74, 75, 77, 86, 91, 101, 107, 110, 113, 133, 164, 165, 167, 186, 187, 195, L30)

Factory fabricated. We should clarify whether forms of construction with factory fabricated secondary containment are equivalent forms of construction. (140)

Flexibility. We should maintain flexibility in allowing owners or operators to use one or more secondary containment systems. (39, 54, 70, 71) We should provide owners or operators flexibility to meet the protection standard in a way that is cost effective to them. (184)

Sorbents or booms. We should remove sorbent materials or booms from the list of acceptable secondary containment structures because they are not a substitute for impervious dikes and impoundment floors. (111)

Sump pump or catchment basin. Sump pumps, catchment basins, or other methods listed in §112.9( b)( 2) might be sufficient. (28, 31, 167)

Response: Applicability of requirement. Secondary containment is best for most facilities storing or using oil because it is the most effective method to stop oil from migrating beyond that containment. We believe that secondary containment is preferable to a contingency plan at manned and unmanned facilities because it prevents discharges as described in §112.1( b). At unmanned facilities, it may be even more important because of the lag in time before a discharge may be discovered. Notwithstanding what may be difficult terrain, we believe that some form of secondary containment is practicable at most facilities, including remote production facilities. In 178 fact, it may often be more feasible in remote or rural areas because there are fewer space limitations in such areas. For example, at some remote mobile or production facilities, owners or operators dig trenches and line them for containment or retention of drilling fluids. Technologies used at offshore facilities to catch or contain oil may also sometimes be used onshore.

While some types of secondary containment (for example, dikes or berms) may not be appropriate at certain facilities, other types (for example, diversionary systems or remote impounding) might. However, we recognize and repeat, as we noted in the 1991 preamble, that some or perhaps all types of secondary containment for certain facilities with equipment that contain oil, such as electrical equipment, may be contrary to safety factors or other good engineering practice considerations. There might be other equipment, like fired or pressurized vessels, for which safety considerations also preclude some or all types of secondary containment.

Some facilities or equipment that use but do not store oil may or may not, as a matter of good engineering practice, employ secondary containment. Such facilities might include wastewater treatment facilities, whose purpose is not to store oil, but to treat water. Other facilities that may not find the requirement practicable are those that use oil in equipment such as hydraulic equipment. Similarly, flowlines must have a program of maintenance to prevent discharges. See §112.9( d)( 3). The maintenance program may or may not include secondary containment. Owners or operators of underground piping must have some form of corrosion protection, but do not necessarily have to use secondary containment for that purpose.

As stated above, for a facility where secondary containment is not practicable, the owner or operator is not exempt from the requirement, but may instead provide a contingency plan and take other measures required under §112.7( d). For most facilities, however, including small facilities, mobile facilities, production facilities, mining sites, and any other facilities that store or use oil, we believe that secondary containment is generally necessary and appropriate to prevent a discharge as described in §112.1( b). Without secondary containment, discharges from containers would often reach navigable waters or adjoining shorelines, or affect natural resources.

Completely buried tanks. Completely buried tanks which are not exempted from this rule because they are subject to all Federal or State UST requirements are subject to the secondary containment requirement. We realize that the concept of freeboard for precipitation is inapplicable to secondary containment for completely buried tanks. The requirement for secondary containment may be satisfied in any of the ways listed in the rule or their equivalent.

Contingency planning or containment. A contingency plan should not be used routinely as a substitute for secondary containment because we believe it is normally environmentally better to contain oil than to clean it up after it has been discharged. Secondary containment is intended to contain discharged oil so that it does not leave the facility and contaminate the environment. The proper method of secondary 179 containment is a matter of good engineering practice, and so we do not prescribe here any particular method. Under part 112, where secondary containment is not practicable, you may deviate from the requirement, provide a contingency plan following the provisions of 40 CFR part 109, and comply with the other requirements of §112.7( d). For bulk storage containers, those requirements include both periodic integrity testing of the containers and periodic integrity and leak testing of the valves and piping. You must also provide a written commitment of manpower, equipment, and materials to expeditiously control and remove any quantity of oil discharged that may be harmful.

Double walled or vaulted tanks. The term "vaulted tank" has been used to describe both double walled tanks (especially those with a concrete outer shell) and tanks inside underground vaults, rooms, or crawl spaces. While double walled or vaulted tanks are subject to secondary containment requirements, shop fabricated double walled aboveground storage tanks equipped with adequate technical spill and leak prevention options might provide sufficient equivalent secondary containment as that required under §112.7( c). Such options include overfill alarms, flow shutoff or restrictor devices, and constant monitoring of product transfers. In the case of vaulted tanks, the Professional Engineer must determine whether the vault meets the requirements for secondary containment in §112.7( c). This determination should include an evaluation of drainage systems and of sumps or pumps which could cause a discharge of oil outside the vault. Industry standards for vaulted tanks often require the vaults to be liquid tight, which if sized correctly, may meet the secondary containment requirement.

There might also be other examples of such alternative systems.

Editorial suggestions.

Primary containment system. In response to the commenter's question, we note that a primary containment system is the container or equipment which holds oil or in which oil is used.

Surface waters. We do not use the term "surface waters" in the final rule. We revised the proposed phrase, "escape to surface waters" to read "escape from the containment system" to reflect more clearly the intent of the rule that secondary containment should keep oil from escaping from the facility and reaching navigable waters or adjoining shorelines.

72 hour impermeability standard. We are withdrawing the proposal for the 72 hour impermeability standard and will retain the current standard that dikes, berms, or retaining walls must be sufficiently impervious to contain oil. We agree with commenters that the purpose of secondary containment is to contain oil from escaping the facility and reaching the environment. The rationale for the 72 hour standard was to allow time for the discovery and removal of an oil spill. An owner or operator of a facility should have flexibility in how he prevents a discharge as described in §112. 1( b), 180 and any method of containment that achieves that end is sufficient. Should such containment fail, the owner or operator must immediately clean up any discharged oil.

Similarly, because the purpose of the "sufficiently impervious" standard is to prevent discharges as described in §112.1( b), dikes, berms, or retaining walls must be capable of containing oil and preventing such discharges. Discharges as described in §112.1( b) may result from direct discharges from containers, or from discharges from containers to groundwater that travel through the groundwater to navigable waters or adjoining shorelines. Effective containment means that the dike, berm, or retaining wall must be capable of containing oil and sufficiently impervious to prevent discharges from the containment system until it is cleaned up. The same holds true for container floors or bottoms; they must be able to contain oil to prevent a discharge as described in §112.1( b). However, "effective containment" does not mean that liners are required for secondary containment areas. Liner are an option for meeting the secondary containment requirements, but are not required by the rule.

If you are the owner or operator of a facility subject to this part, you must prepare a carefully thought out Plan in accordance with good engineering practice. A complete description of how secondary containment is designed, implemented, and maintained to meet the standard of sufficiently impervious is necessary. In order to document that secondary containment is sufficiently impervious and sufficiently strong to contain oil until it is cleaned up, the Plan must describe how the secondary containment is designed to meet that standard. A written description of the sufficiently impervious standard is not only necessary for design and implementation, but will aid owners or operators of facilities in determining which practices will be necessary to maintain the standard of sufficiently impervious. Control and/ or removal of vegetation may be necessary to maintain the impervious integrity of the secondary containment. Repairs of excavations or other penetrations through secondary containment will need to be conducted in accordance with good engineering practices in order to maintain the standard of sufficiently impervious. The owner or operator should monitor such imperviousness for effectiveness, in order to be sure that the method chosen remains impervious to contain oil.

We note that we have withdrawn the proposed 72 hour standard, and afford various secondary containment options, including earthen dikes and diked areas, if they contain and prevent discharges as described in §112.1( b). Therefore, there are no new costs. We disagree with the commenters who asserted that we underestimated the cost to comply with the secondary containment and truck loading area requirements. The revised rule, like the current rule, does not require a specific impermeability for dikes and does not require a specific method of secondary containment at loading areas, and this flexibility is reflected in our cost estimates. We noted in our 1991 Supplemental Cost/ Benefit Analysis that secondary containment for bulk storage tanks is estimated to cost $1, 000 for small facilities; $6, 400 for medium facilities; and $63,000 for large facilities. Unit cost estimates were developed for a broad mix of facilities (e. g., farms, bulk petroleum terminals) in each size category by experienced engineers with firsthand knowledge of the Oil Pollution Prevention 181 Regulation and the operations of onshore SPCC regulated facilities. Because our cost estimates must be representative of the many types of facilities that are regulated, they will underestimate the costs for some facility types and overestimate the costs for others. Facilities were assumed to construct secondary containment systems of impervious soil capable of holding 110 percent of the largest tank. In that analysis, we estimated that 78 percent and 88 percent of the regulated community were already in compliance with these requirements, respectively, and would not be affected by the proposed rule change.

Since we last performed these analyses, API has issued several industry standards, including API 653 and 2610, which address many of the provisions in the SPCC rule. As a result, the final rule relies on current industry standards and practices, where feasible. In the final rule, we withdrew the proposed 72 hour impermeability standard for secondary containment and maintained the current requirement that dikes, berms, and oil retaining walls must be sufficiently impervious to contain oil. As a result, the final rule reflects current industry standards and we assume poses no additional requirements on industry.

Industry standards. Industry standards that may assist an owner or operator with secondary containment include: (1) NFPA 30; (2) BOCA, National Fire Prevention Code; and, (3) API Standard 2610, "Design, Construction, Operation, Maintenance, and Inspection of Terminal and Tank Facilities."

Methods of secondary containment. We disagree that we should remove sorbent materials and booms from the list of acceptable secondary containment structures. The appropriate method of secondary containment is an engineering question, and therefore we do not prescribe any particular method. Double walled piping may be an option, but is note required by these rules. Earthen or natural structures may be acceptable if they contain and prevent discharges as described in §112.1( b), including containment that prevents discharge of oil through groundwater that might cause a discharge as described in §112. 1( b). What is practical for one facility, however, might not work for another. If secondary containment is not practicable, then the facility must provide a contingency plan following the provisions of 40 CFR part 109, and otherwise comply with §112.7( d).

Sufficient freeboard. See the Response to Comments in §112.8( c)( 2) for a discussion of this topic.

X E Contingency planning X E 1  1991 and 1993 proposals Background: 1991 proposal. Current §112.7( d) requires that, when an owner or operator determines that secondary containment is impracticable, he must demonstrate this impracticability and prepare a strong oil spill contingency plan following the provisions of 40 CFR part 109. In 1991, we proposed several new requirements in 182 §112.7( d). We proposed language clarifying that the owner or operator must submit the contingency plan to the Regional Administrator (RA) for approval. Further, we replaced the reference to 40 CFR part 109 with a list of basic requirements for an oil spill contingency plan. We proposed language requiring that the owner or operator make the contingency plan a stand alone section of the Plan; and, that he not rely upon response methods other than containment and physical removal of oil from the water (e. g., not rely on dispersants or other chemicals), unless the RA approved such response methods. We also asked for general comments on Phase Two contingency planning, and specific comments and supporting data on contingency planning needs.

Under §112.7( d)( 2) of the current rule, the owner or operator of a facility without secondary containment must provide a written commitment of manpower, equipment, and materials required to expeditiously control and remove any harmful quantity of discharged oil as part of his contingency plan. In 1991, we proposed in §112.7( d)( 2) a recommendation that the facility owner or operator consider factors such as financial capability in making the written commitment of manpower, equipment, and materials.

1993 proposal. In 1993, we modified the 1991 proposal for a facility that lacks secondary containment to require a facility response plan as described in §112.20, instead of the specific requirements proposed in 1991. The response plan would not be submitted to the Regional Administrator for his review, unless otherwise required, but would be maintained at the facility with the SPCC Plan.

Comments: Support for proposal. Support for proposal for elementary contingency planning requirements. ( 61, 91, 175) Support for contingency planning as an alternative when secondary containment is impracticable. (90, 125) We should separate prevention and response plan rules. (121)

Expanded requirements. "3M believes that requirements for even elementary contingency plans should be expanded during this rulemaking to include additional factors. ... Accordingly, 3M believes the SPCC regulation should expressly require the calculation of a worst case scenario as part of each contingency plan. ... 3M believes the SPCC regulation should require each contingency plan to document the availability of enough sorbent material and other equipment to manage a worst case spill. ... The regulation should state that the plan must provide for: employee training in implementation of the plan, including practice drills; availability of protective gear for all employees who may be called upon to respond to a spill; and, timely restocking of sorbents and protective gear after use. 3M also supports EPA's plan to develop more detailed requirements for contingency plans, including vulnerability analyses and event and fault tree analyses, as part of the Phase Two rulemaking." (61, 107)

Response planning and 1993 contingency planning proposal  Phase II.

Leak detection. At no time should we require installing leak detection systems or conducting vulnerability, and event and fault tree analyses at a facility with 183 adequate secondary containment. (51, 57, 67, 155, 191) In the Phase Two regulations, we should require owners or operators to install these systems for all SPCC facilities, because secondary containment could not be effective for an underground spill and early detection should be a priority. (L1)

Performance standards. We should avoid making the Phase Two planning standards like performance standards. We should not initiate an enforcement action against an owner or operator who failed to follow "a script or scenario laid down during the planning process." (133)

Requirements premature. "API opposes as premature, facility specific contingency plan information needs (i. e., discovery of a spill, emergency notification procedures, name of the spill response coordinator, procedures for identifying personnel and equipment that may be needed, available equipment lists, available personnel lists, an identification of hazards, a vulnerability analysis, and an event and fault tree analysis.) Until EPA fully defines, in the Phase Two rulemaking, the scope and limitation of these terms, justifies the informational needs in terms of protection of human health and the environment, and demonstrates that it is statutorily authorized to collect such information, it is premature to require it at this time. Area Committees, as mandated by the OPA, will be developing this information directly." (67) "The Agency's position appears to be that specific contingency planning requirements will be developed in its Phase II rulemaking. However, this is of little help to facilities that must develop contingency plans to meet Phase I requirements. Therefore, we recommend that the Agency defer the requirement to prepare contingency plans until promulgation of the Phase II rules." (125) We should require contingency planning only as part of Phase Two for facilities with the potential to cause substantial harm. (L12)

Secondary containment, not a contingency plan. "New York State does not accept contingency plans in place of a secondary containment system. We recommend that all facilities threatening ground or surface waters have secondary containment facilities." (111)

Vulnerability analysis. The discussion of vulnerability, event and fault tree analyses is confusing in connection with the actual proposal in the Phase One rulemaking. (34) "Such analyses should not be required for facilities with secondary containment. Furthermore, if EPA should require these analyses, the analyses should encompass readily available information and EPA should use only clearly understood criteria in asking for information." (57, 89, 101, 107, 114, L15).

Downstream water suppliers. "It is proposed that, under Phase II, a site specific contingency plan will include a vulnerability analysis, one element of which would be notification of drinking water suppliers [downstream]. Pennsylvania currently has such a requirement that could be considered to have a flaw. The 184 Pennsylvania requirement is that oil storage facilities must identify water users for 20 miles downstream, and update that list every year. Because the primary source of such information is at offices of each county, the demands on the facilities and county offices is excessive. In addition, facilities may not identify a new water user for nearly a year." (76)

Response: Support for proposal. We appreciate support for the proposal, but modified that proposal in 1993. See the preamble to today's final rule and section 4 of the 1993 Comment Response Document for a discussion on contingency planning. See below for comments related to the extant 1991 proposal.

Response planning and 1993 contingency planning proposal  Phase II. For an indepth discussion of issues in the Phase Two rulemaking, see the FRP preamble and final rule (59 FR 34070, July 1, 1994), the Phase Two docket (SPCC 2P), and the preamble to today's final rule. See the preamble to today's final rule, section 4 of the 1993 Comment Response Document for a discussion on contingency planning, and sections X E, F, and G of this document.

X E 2 General  §112.7( d)

Background. In 1991, we proposed to add language to §112.7( d)( 1) listing the basic requirements for an oil contingency plan, including the phrase "and such other information as required by the RA."

Comments: Additional information. This language is too broad and would subject facilities to unknown regulation. We should clearly specify what additional information would be required by t3he RA or change the language to state "such other information as the RA may reasonably require." (103) The contents should include at least the same requirements as those found in the Oil Pollution Act (OPA) amendments to the Federal Water Pollution Control Act (FWPCA). (171)

Applicability.

Aboveground tanks. Proposed §112.7( d) should be applicable to fixed aboveground tanks only. (102)

Buried piping, buried tanks, portable tanks. Questions whether it was our intent to require facilities "with buried piping, buried tanks, or portable tanks for which secondary containment cannot be provided" to prepare and submit an SPCC Plan. (102)

Electrical equipment. "The electric utility strongly supports the inclusion in the SPCC rules of an alternative to secondary containment/ drainage control requirements where such controls are demonstrated to be impracticable. This provision adds needed flexibility to the rule and again allows the owner or operator to use good engineering practices in adapting the goals of the SPCC 185 program to unusual facilities. As the Agency has recognized, secondary containment is impracticable at many electric utility substations." (125)

FRP facilities. Re §112.7( d): "When response plans are to be required of all facilities, this paragraph should be deleted." (121)

Large facilities. "Suggest that contingency plan for "large facilities" only be provided to Regional Administrator." (62)