Size of transfer. EPA considered throughput (size of the transfer) in
developing the definition for loading/unloading rack promulgated in this
notice. Specifically, several commenters recommended that the definition
of loading/unloading racks be based on throughput, offering various
throughput numbers as a method of defining transfer operations that
would be subject to the §112.7(h) requirements. However, these
suggestions included limited supporting data. The complexity in
determining a rack’s throughput for a given time period would add
additional burden on the owner and operator of a facility. Furthermore,
there is no basis for deciding on a specific time period for this
determination. Thus, EPA is not basing its definition of
loading/unloading rack on a “racks” throughput.

Clarify equipment described applies only to tank cars or tank trucks at
the loading/unloading rack.  In response to questions from commenters,
EPA is clarifying that tank cars and tank trucks are only subject to the
requirements of §112.7(h) when conducting loading or unloading
operations associated with a rack as defined in this action. Otherwise,
they are subject to the general secondary containment requirements at
§112.7(c).	Commenters suggested a modification to the text associated
with §112.7(h)(2), which was not proposed.  This suggested change is
outside the scope of today’s final action.

Remove specific language from definition. Commenters suggested that EPA
delete reference to the accessories such as piping assemblages, valves,
pumps, shut-off devices, overfill sensors, and personnel safety devices
from the definition, as these may or may not be a part of the rack, and
one or more of these devices (such as overfill sensors) are typically
present on most tanks. The definition is not intended to address oil
containers (such as tanks); the list of equipment specifically addresses
equipment associated with loading/unloading rack structures. EPA
believes that providing examples of equipment usually associated with
loading/unloading racks would be useful for the owner or operator of a
facility, as well as the PE, for determining the applicability of the
definition.

Use “transfer areas” to refer to “loading and unloading areas. EPA
disagrees with the commenter’s suggestion to change the §112.7(h)
text. Additionally, EPA did not propose the suggested changes.  All
areas are transfer areas and to finalize the text as the commenter
suggested would lead to more confusion.  EPA did finalize modifications
to §112.7(h) to make the rule text and title of the section consistent
by removing the word “area” and replace it with the word “rack.”

Other Proposed Definitions of Loading/Unloading Rack. EPA received
several alternatives to the definition of loading/unloading rack
proposed by the Agency. EPA considered these alternative definitions in
developing the definition for loading/unloading rack promulgated.
Certain definitions provided examples only of equipment that should not
be considered a loading or unloading rack. The Agency believes that it
is much clearer to define the equipment typically associated with a
loading or unloading rack than to provide a list of equipment that are
not considered a loading or unloading rack. Thus, EPA is finalizing an
equipment-based definition, as proposed, as a clearer method for
identifying transfer activities subject to the requirements of
§112.7(h). While some commenters suggested limiting the definition to
certain facility types (petroleum refineries, bulk plants, and marketing
terminals), doing this would be inappropriate as loading and unloading
rack equipment is present at many other facility types (military bases,
manufacturing facilities, transloading operations) regulated by EPA. As
stated elsewhere, transfer activities at an otherwise regulated SPCC
facility, not occurring at a loading or unloading rack are subject to
only the general containment requirements.  EPA agrees that the sized
containment for a loading or unloading rack may, in some situations, but
not all, serve to address the general containment requirements for a
co-located non-rack transfer location, but this is a site-specific
determination, subject to good engineering practice.

VI.B 	Requirements for Loading/Unloading Racks

Issue: EPA proposed editorial revisions to the provision at §112.7(h)
for clarity. Specifically, EPA proposed to change all references from
loading/unloading “area” to loading/unloading “rack.” The Agency
also proposed modifications to an interpretation in the 2002 preamble
discussing how EPA regulates the transfers to or from completely buried
tanks subject to all of the technical requirements under 40 CFR 280 or
281.

COMMENTS

Support Proposal

Generally support. Three commenters expressed support for the proposed
amendment to change all references from loading/unloading “area” to
loading/unloading “rack.” (111, 113, 129)

Oppose Proposal

Transfers to or from completely buried tanks. Commenters recommended
that EPA maintain its existing position that the rule does not apply to
loading/unloading racks and transfer areas for transfers to or from
exempted tanks - specifically, in this instance, tanks exempted under 40
CFR 280.30(a) or associated state programs approved under Part 281. (75,
111) One commenter reasoned that removing the exemption could result in
gasoline service stations and aviation fixed base of operations (FBO)
facilities developing plans. The commenter also indicated that 40 CFR
280.30(a) have spill prevention provisions.  The commenter believes that
no rule change is necessary, and that any change in interpretation is
inappropriate. The commenter also believes that any reinterpretation
would expand the agency's jurisdiction and cause undue burden on
industry. (111)

Other Suggested Approaches

Exempt loading/unloading activity from SPCC regulation. One commenter
supports exempting the loading/unloading activity from SPCC regulation,
because standard industry practice is to place the connection valve
inside a secondary containment area during loading/unloading. The
commenter provides as justification the small volume of a potential
leak, flat loading area location, and that a discharge would be observed
and responded to immediately by personnel engaged in loading/unloading
activity. (133)  Another commenter requested that all equipment,
including loading/unloading racks, that are associated with an
SPCC-exempt tank, also be exempted from the rule. (75)

General secondary containment. A commenter requested EPA clarify in the
regulations that loading racks are subject only to general secondary
containment requirements; and that this revision will address the goal
of § 112.7(h) by not including operations that do not pose significant
oil discharge risks. (100)  Another commenter also suggested that EPA
use the term “reasonably expected maximum rate of discharge” instead
of “most likely discharge” in the Guidance as the basis for
designing secondary containment for transfers.  The commenter would
interpret “reasonably expected maximum rate of discharge” to mean
the maximum flow rate of the largest transfer pump used in a transfer
are or the estimated flow rate from a tank if a transfer coupling
disconnected. (121)

Settlement language. Two commenters recommended EPA codify the
settlement agreement in this rule to provide clarity to the regulated
community (75, 111) and place all rule requirements in a single document
rather than separate documents. (75)

Special control measures. A commenter suggested EPA regulate transfers
based on frequency, volume, method, spill likelihood, and spill
consequences. (125) The commenter reasoned that regulation of
loading/unloading only at racks may create an incentive for conducting
transfers without racks to avoid regulation. (125) The commenter
suggested the following text for §112.7(h): “(1) Special Control
Measures. The SPCC plan shall describe special secondary containment or
other measures required for portions of the facility where experience at
the facility, or similar facilities, indicates a higher likelihood of a
discharge as described in Section §112.1(b), such as transfer areas
where containers are frequently open for filling or where couplings are
frequently connected and disconnected from containers. The need for and
volume of special secondary containment shall depend on (i) the
reasonably expected sources and causes of leaks and the resulting
reasonably expected maximum leak rate, (ii) whether or not overflows
from the special secondary containment will flow into a catchment basin,
treatment facility, or other containment system designed to handle the
reasonably expected maximum leak rate, and (iii) procedures, personnel,
alarms, emergency shutoffs, automatic shutoffs, and other equipment
available to prevent or limit the volume of a leak. (2) Special
Prevention Measures. The SPCC plan shall describe warning signs, other
warning systems, use of wheel chocks, or vehicle brake interlock systems
to prevent movement of mobile containers (including tank trucks and tank
cars) during operations when movement would probably cause a leak.”
(125)

RESPONSE

Support Proposal

Generally Support. EPA agrees with the commenters who expressed support
for the proposed amendment to change all references from
loading/unloading “area” to loading/unloading “rack.”  This
revision will provide clarity to the regulated community as to the
ability of the loading rack requirements.

Oppose Proposal

Transfers to or from completely buried tanks. EPA has decided to modify
the Agency’s interpretation in the 2002 preamble discussion of how EPA
regulates the transfers to or from completely buried tanks to clarify
that at an SPCC-regulated facility, §112.7(h) (including the sized
secondary containment provision) applies to transfers at any
loading/unloading rack associated with any type of container, including
one that is exempted from the rule, as long as the loading/unloading
rack meets the definition finalized in this notice. A transfer not
associated with a loading or unloading rack is subject to the general
secondary containment provision at §112.7(c). This interpretation is
consistent with the approach EPA has taken with other exempt containers
at an otherwise regulated SPCC facility. For example, in the preamble to
the December 2006 amendments, EPA noted that although the amendment
provided an exemption for motive power containers, the oil transfer
activities to or from motive power containers occurring within an
SPCC-regulated facility continue to be regulated (71 FR 77283, December
26, 2006). No rule change is needed to clarify this point, because a
rule amendment to exempt a loading/unloading rack associated with an UST
was never proposed or finalized. This clarification is intended to
correct preamble language that was inconsistent with the Agency’s
position on other exempt containers and their associated transfer
activities.

One commenter stated that the provisions associated with 40 CFR
280.30(a) address spill prevention and thus, the requirements for
loading/unloading racks should not apply to exempted USTs. While we
recognize that this provision (40 CFR 280.30(a)) describes spill and
overfill control requirements when USTs are being filled, EPA still
believes that the loading/unloading requirements should apply to these
exempted USTs, for the reasons described above. However, EPA would note
that to the extent that 40 CFR 280.30(a) addresses SPCC requirements,
these measures can be described in the SPCC Plan, as appropriate.
Therefore, transfers at loading/unloading racks and transfer areas
associated with exempted USTs are considered regulated activities at an
otherwise regulated SPCC facility. In addition, exempted USTs, at an
otherwise-regulated SPCC facility, equipped with a loading/unloading
rack as defined in this action, are subject to the requirements of
§112.7(h). Also, exempted USTs, at an otherwise regulated SPCC
facility, equipped with a transfer area (for example, dispenser or other
transfer equipment) are subject to the requirements of §112.7(c).
Non-rack transfer areas are required to provide only general secondary
containment for the most likely discharge, as discussed in Section H in
this action, and which may include active containment measures, such as
response action or sorbent deployment.  EPA disagrees with commenters
who stated that this change in interpretation would result in gas
stations and FBOs being required to develop SPCC Plan and increasing
burden on the regulated community. This interpretation impacts only the
transfer activities associated equipment (exempt USTs) at otherwise
regulated SPCC facilities.  The interpretation did not change the
fundamental applicability of the rule to facilities.

Other Suggested Approaches

Exempt loading/unloading activity from SPCC regulation. EPA did not
propose: (1) to exempt (nor do we agree that the final rule should
exempt) loading or unloading activities conducted at loading/unloading
racks from the SPCC rule The industry practices described by the
commenter may be used to meet the rule requirements that exist for
loading and unloading activities; these do not provide adequate
justification to exempt this equipment from the SPCC regulation).  EPA
disagrees with comments requesting that all equipment, including
loading/unloading racks, that are associated with an SPCC-exempt tank,
also be exempted from the rule. (75)  EPA did not propose an exemption
and to do so would be outside the scope of toady’s final action.

General secondary containment. EPA did not propose to eliminate the
sized containment requirements for loading and unloading racks.  EPA
also did not propose a risk based standard for determining applicability
of the loading and unloading rack provisions.  Therefore, these comments
fall outside the scope of today’s final action.  EPA disagrees with
the commenter who stated that the term “reasonably expected maximum
rate of discharge” should be used in the Guidance instead of “most
likely discharge” as the basis for designing secondary containment for
transfers.  EPA did not propose to change any on the containment
requirement to require sizing based on “reasonably expected maximum
rate of discharge”  However, elsewhere in today’s action EPA did
provide flexibility in determining the containment sizing requirements
for the general containment provisions under §112.7(c).

Settlement language. Commenters requested that EPA codify settlement
language on this issue. We have not done this; however, the modification
to change the word “area” to “rack” in §112.7(h) is consistent
with EPA’s notice in the Federal Register in May 2004, which stated
that §112.7(h) only applies at facilities with loading and unloading
“racks” (69 FR 29728, May 25, 2004). EPA also maintains its
position, as clarified in a letter to the Petroleum Marketers
Association of America (PMAA), that loading and unloading activities
that take place beyond the rack area are not subject to the requirements
of §112.7(h), but are subject, where applicable, to the general
secondary containment requirements of §112.7(c) (Letter to Daniel
Gilligan, President, Petroleum Marketers Association of America, from
Marianne Lamont Horinko, Assistant Administrator, Office of Solid Waste
and Emergency Response, EPA, May 25, 2004 and 69 FR 29728, May 25,
2004).  Thus, EPA has codified in rule text the agreements made during
settlement in an effort to provide clarity to the regulated community.

Special control measures.  EPA does not agree with the commenter that
suggested that further revisions be made to the rule requirements at
§112.7(h) to address special control measures for portions of the
facility with a higher likelihood of a discharge as described in
§112.1(b). The Agency believes the current requirements are appropriate
to address a discharge at the loading/unloading rack. The clarifications
to the language in §112.7(h) finalized in this action address the
questions that have been raised by the regulated community on how these
rule provisions apply to loading/unloading racks and do not apply to
areas beyond the “rack.”  EPA did not propose, and does not agree
with, regulating transfer activities based on a risk based approach
evaluating transfer frequency, volume, method, spill likelihood and
spill consequences.  As explained above, EPA has finalized an equipment
based definition for the term “loading and unloading rack” which is
used to determine the applicability of the sized containment
requirements in lieu of a risk based approach.  Finally, EPA modified
the general containment provisions to provide additional flexibility to
address transfer operations located at non-rack transfer areas.

	EPA also disagrees that regulating transfers at loading racks will
create an incentive for conducting transfers without racks to avoid
regulation because all transfer activities are regulated at facilities
subject to SPCC.  Transfers at loading/unloading racks are subject to
§112.7(h), while transfers operations at non-rack transfer areas are
subject to the general secondary containment requirements at §112.7(c).

VI.C	Exclusion

Issue: EPA proposed to exclude onshore oil production facilities from
the loading/unloading rack requirements at §112.7(h). EPA sought
comment on whether the proposed exclusion for onshore oil production
facilities from the loading/unloading rack requirements is necessary, or
whether the proposed definition of the term ‘‘loading/unloading
rack’’ would provide sufficient clarity as to the applicability of
§112.7(h) at oil production facilities. In addition, EPA proposed to
exclude farms from the loading/unloading rack requirements at
§112.7(h). EPA sought comment on whether the proposed exclusion of
farms from the loading/unloading rack requirements is necessary, or
whether the proposed definition of the term ‘‘loading/unloading
rack’’ would provide sufficient clarity as to the applicability of
§112.7(h) at farms.

COMMENTS

Support Proposal

Generally Support. Several commenters expressed support for the proposed
amendments regarding onshore oil production facilities. (76, 85, 105,
108, 111, 113, 123) One commenter expressed support for the amendments
addressing exemption of farms. (56)

Oppose Proposal

No comments were submitted on this topic regarding onshore oil
production facilities.

Treat agricultural retailers similarly. One commenter stated that if the
EPA believes loading racks are generally not found at farms and are
already covered by existing federal and state regulations, the same
holds true for agricultural retailers. The commenter suggested that
agricultural retail facilities should be exempt from SPCC regulations
since these facilities already fall under FIFRA pesticide regulations.
(Undocketed Letter)

RESPONSE

Generally support. The Agency agrees that it is appropriate to exclude
onshore oil production facilities and farms from the loading/unloading
rack requirements at §112.7(h). Commenters confirmed EPA’s
understanding that there are only a few, if any, loading/unloading racks
at oil production facilities, and that agricultural oil and fuel
transfers at farms are generally not associated with loading/unloading
racks. However, all transfer activities at an SPCC production facility
or farm would be subject to the general containment requirements in
§112.7(c).

Treat agricultural retailers similarly. The Agency disagrees with the
commenter who requested that agricultural retailers also be excluded for
the loading/unloading requirements of §112.7(h) on basis of FIFRA
requirements because these regulations do not provide spill prevention
requirements equivalent to the SPCC requirements. If an agricultural
retail facility (which is not by definition a farm) conducts fuel
transfers with equipment that meets the definition of a
loading/unloading rack, then this facility would be subject to the
loading/unloading rack requirements at §112.7(h).

VI.E 	Alternative Option Considered

Issue: EPA considered not providing any amendments to the SPCC rule
related to loading/unloading racks. Under this approach, EPA would not
provide a regulatory definition for loading/unloading rack or an
exclusion for farms and oil production facilities, but would instead
continue to follow the interpretation of loading/unloading rack as
stated in the SPCC Guidance for Regional Inspectors and the May 2004
Federal Register notice.

COMMENTS

Support

Generally Support. Several commenters indicated that no rule change is
necessary. (100, 111, 121, 125) One commenter suggested that EPA should
abandon the effort to define loading racks and drop the sized secondary
containment requirement from §112.7(h) based on what the commenter
believes is the apparent difficulty EPA is having in defining the scope
of the provision and because the commenter sees only marginal benefits
associated with these provisions. (121) Another commenter recommended
that EPA clarify in the regulations that loading/unloading racks are
subject solely to the general containment requirements. (100)

Oppose

No comments were submitted on this topic.

Other Suggested Modifications

No comments were submitted on this topic.

RESPONSE

Generally support. EPA disagrees with the commenters and has finalized
the new definition and associated editorial changes to the rule to
provide additional clarity in describing the type of equipment and
facilities subject to the loading/unloading rack requirements under
§112.7(h). Additionally, EPA did not propose to eliminate the sized
secondary containment requirements for loading racks and to do so would
be outside the scope of the proposal. EPA does not agree that the effort
to define loading or unloading rack should be abandoned. The definition
finalized in today’s action provides clarity about the scope of
equipment regulated by the §112.7(h) provisions.

VII.	Tier I Qualified Facilities

VII.A  	Eligibility Criteria

Issue: EPA proposed to establish a tiered approach for qualified
facilities with an option to allow the owners and operators of a subset
of qualified facilities (now designated as “Tier I qualified
facilities”) to complete and implement a streamlined, self-certified
SPCC Plan template (proposed as Appendix G to 40 CFR part 112), in order
to comply with the requirements of the SPCC rule.  To be eligible as a
Tier I qualified facility, the owner or operator must meet the criteria
for a qualified facility (see (§112.3(g)) and have a maximum individual
aboveground oil storage container capacity of 5,000 U.S. gallons.  EPA
proposed to designate all other qualified facilities as “Tier II
qualified facilities.”

COMMENTS

Support

Generally support.  Several commenters expressed general support for the
proposed amendments. (24, 29, 45, 55, 70, 71, 72, 84, 92, 98, 110, 113,
114, 119, 124, 128, 129, 142, 147) One commenter supported the approach
because it reduces requirements for facilities with between 1321 and
5000 gallons of oil storage capacity. (71)

Oppose

Proposed criteria do not reduce burden for oil and gas facilities. A
commenter stated that “[t]he proposed simplification of the
requirements for qualified Tier I facilities and the addition of a
template, as well as the additional Tier II qualified facility
category… would be useless to most oil and gas production facilities
because the owner or operator must include in the calculation of ‘oil
storage capacity’ the capacity of treated produced water storage.”
(123)

Discharge criteria. One commenter stated that any discharge in the
previous 3 years should disqualify a facility from Tier 1 or Tier 2
eligibility and should require the development and implementation of a
P.E. certified Plan. (132)

Eliminate the qualified facility option.  One commenter requested that
EPA remove the special treatment by the qualified facility option and
require all small oil storage facilities to prepare a complete SPCC Plan
certified by a P.E. based on 1,320 gallon storage capacity. The
commenter believes that this will assure equal and fair treatment for
all owners and operators of oil tankage. (31)

Alternative Approaches Suggested

Alternative the threshold for Tier I qualified facilities. Several
commenters suggested increasing the Tier I individual tank threshold
requirement to 10,000 gallons. (104, 109, 112) One commenter stated that
“[c]ommon crude oil and produced water tank sizes typically come much
closer to storing 202 barrels for oil and 300 barrels for water.
Therefore the proposed 119 barrels or 5,000 gallons for oil will not
allow most small operators to qualify for Tier 1 treatment.  To make the
proposed rules available to small operators, EPA should allow commonly
used oilfield tank sizes (two 202 barrel tanks and one 300 barrel water
tank, or 16,968 gallons oil and 12,600 gallons water) to use the
simplified Tier 1 rules for the oil portion of the unit.” (129)
Another commenter argued that “[d]ue to the standard size of oil
storage tanks in North Dakota, which is 400 barrels, operators in North
Dakota will not be able to take advantage of the increased flexibility.
Consideration should be given to a standard oilfield sized tank and the
number of tanks on location in order to self-certify. It is suggested
that a location with one 400 barrel oil tank on location that is in
compliance with state or federal diking regulations fall into the Tier I
category.” (133) Another commenter asked EPA to consider raising the
level of 5,000 for Tier I and 10,000 gallons for Tier II. The commenter
stated that a single tank truck of AF/VO typically holds 6,000 gallons
of AF/VO forcing the facility in Tier I to purchase and have delivered a
smaller quantity than is typically delivered. The commenter argued that
the facility would be forced to be completely out of product before the
next load would fit into the tank without risk of overfilling the tank
or stop production until the product arrives. (102)

Facility proximity to sensitive environments. A commenter states that
the proposed rule “does not take into account the fact that some
facilities that meet the criteria proposed for Tier I or Tier II
facilities because they have less than 10,000-gallon aggregate storage
and/or no single aboveground storage tank (AST) with a capacity of
5,000-gallons are located immediately adjacent to environmentally
sensitive areas, such as lakes, rivers, and wetlands. It is recommended
that criteria be introduced that takes into consideration a facilities
proximity to environmentally sensitive environments either by distance
or some other logical means.”  (29)

Use actual volumes rather than capacity to determine eligibility. A
commenter suggests that “[t]o the extent that there is a move to
lessen regulatory burden for smaller operations by the ‘tiered
qualified facility’ approach, consideration to regulation of sites
based on actual oil storage, not container capacity should be done.”
(82)

Exclude the capacity of containers containing AFVO that would solidify
without heating. Commenters suggested that EPA should revise the SPCC
applicability provisions and the Tier II eligibility criteria for AFVO
facilities by modifying §112(d)(2) so that the capacity of AFVO storage
containers would not be counted toward the facility oil storage capacity
calculation.  The commenters also requested that EPA revise the Tier I
eligibility criteria to be consistent with these Tier II changes, and
exclude from the 5,000 U.S. gallon individual maximum those containers
of AFVO that would solidify without heating.” (51, 73, 102)

Increase the storage threshold capacity for Tier II. One commenter
requested that EPA raise the threshold capacity for qualified facilities
to 15,000 gallons, (112)

Confirm that facility oil-filled operational equipment is eligible for
Tier I status.  A commenter suggests that “EPA should confirm that
qualified facilities with oil-filled operational equipment are eligible
for the Tier I status. We suggest that the language be modified to read
‘has no individual oil storage container or oil-filled operational
equipment greater than 5,000 gallons.’” (121)

Define the term “terrorism” in the explanation of criteria.  A
commenter expressed concern that without a definition for the term
“terrorism” each Region will define the term differently, resulting
in confusion over the qualified facilities criteria.  (31)

Three-tiered approach to eligibility.  Several commenters expressed
support for a three-tiered approach to the tank threshold trigger for
qualified facilities and the use of a PE only in cases where the tank
capacity is above 20,000 gallons. The commenters argued that this fits
the nature of farming operations that are frequently spread out, remote,
and family-owned. (104, 109, 141)

RESPONSE

Support

Generally support.  EPA agrees with commenters who generally supported
the proposal. The Agency is amending the SPCC rule, with some changes in
response to comments received, to provide the Tier I option for the
owners and operators of a subset of qualified facilities that meet an
additional criterion to complete and implement a streamlined,
self-certified SPCC Plan template. For clarity, EPA is finalizing the
term “Tier II qualified facility” to describe those qualified
facilities as defined by and subject to the requirements promulgated in
the December 2006 SPCC rulemaking (71 FR 77266, December 26, 2006). We
believe one commenter who supported the proposal may be under the
impression that the criteria for Tier I qualified facilities only
applies to facilities with less than 5,000 gallons of oil storage
capacity. Rather, a Tier I qualified facility is a facility that has a
maximum individual aboveground oil storage container capacity of 5,000
U.S. gallons and meets the Tier II qualified facility criteria (i.e.,
the reportable discharge criterion in §112.3(g)(2) and either has an
aggregate aboveground oil storage capacity of 10,000 U.S. gallons or
less; or meets alternative criteria for oil production facilities in
§112.3(g)(2)(ii)).

Oppose

Proposed criteria do not reduce burden for oil and gas facilities. EPA
disagrees with the commenter that the qualified facility options would
not reduce the burden for oil and gas facilities. EPA has estimated that
the Tier II approach does allow approximately 13% of the smallest oil
and gas production stakeholders to qualify to self-certify their SPCC
Plans based on oil storage capacities below 10,000 U.S. gallons.
However, EPA is finalizing an alternative set of Tier II qualified
facility eligibility criteria specific for onshore oil production
facilities that does not rely on facility oil storage capacities. EPA
believes these alternative criteria are more appropriate to qualify the
oil production facilities for Plan self-certification.

Any discharge in the previous 3 years should disqualify a facility from
Tier 1 or Tier 2 eligibility. EPA disagrees with the commenter
suggesting that the criterion for discharge history be more stringent.
Some discharges occur despite adherence to the SPCC Plan and do not
necessarily indicate a need for a PE to certify the SPCC Plan. EPA chose
a discharge history criterion similar to the reporting requirement in
§112.4(a) because a discharge smaller than what must be reported to the
EPA Regional Administrator (RA) under this section may result from
normal handling of oil at the facility and may not indicate a recurring
problem resulting from a deficiency in the Plan or improper Plan
implementation. In those circumstances, the RA would not likely require
the owner or operator to amend the Plan and therefore, the facility
owner/operator should be eligible to self-certify the SPCC Plan as a
qualified facility.

Eliminate the qualified facility option. The Agency did not propose to
eliminate the qualified facility option that was finalized in the
Federal Register on December 26, 2006 (71 FR 77266) and therefore is not
amending the regulation to remove this provision as suggested by a
commenter.

Alternative Approaches Suggested

Alternative threshold for Tier I qualified facilities. Commenters
suggested alternative threshold for Tier I qualified facilities based on
commonly used tank sizes in various industry sectors as well as the size
of tank trucks that deliver AFVO to SPCC-regulated facilities. EPA
considered these alternative thresholds for Tier I qualified facilities;
however, the Agency does not believe that alternative thresholds
identify a subset of the qualified facilities that the Agency finalized
in December 2006 (December 26, 2006, 71 FR 77266).. Many of the
commenters suggested thresholds that are larger than the 10,000 gallon
aboveground storage capacity threshold for Tier II qualified facilities.
Those commenters did not provide data to demonstrate how the alternative
threshold supports streamlined regulatory requirements appropriate for a
subset of qualified facilities. Therefore, EPA is finalizing the Tier I
qualified facilities criterion to require a maximum individual oil
container of 5,000 U.S. gallons as proposed. This criterion links an
operational characteristic of a facility (the maximum tank size) to
streamlined requirements for integrity testing of the bulk storage
containers based on industry consensus standards.

Facility proximity to sensitive environments.  EPA disagrees with the
commenter that criteria should be added to take into consideration
proximity to sensitive environments. Consideration of the impact of an
oil discharge to the environment is made when determining the
applicability of the SPCC regulation to the facility. The SPCC rule only
applies to a facility when it has a reasonable potential to discharge
oil in quantities that may be harmful to navigable waters or adjoining
shorelines. Furthermore, the Agency does not have data to support
establishing a minimum distance or other measure for a criterion to
consider proximity to sensitive environments. This type of criterion
would raise questions by the regulated community on what method to use
to calculate proximity to sensitive environments to determine
eligibility for Tier I status. Finally, the goal of the SPCC program is
to prevent, prepare for, and plan to respond to oil discharges to
navigable waters and adjoining shorelines, which may include lakes,
rivers and wetlands. The owner or operator of a qualified facility is
responsible to develop an SPCC Plan that meets these standards,
regardless of whether the facility is located near a sensitive
environment.  Therefore, EPA does not believe that an additional
criterion is appropriate for an SPCC-regulated facility that may impact
sensitive environments.

Use actual volumes rather than capacity to determine eligibility.  EPA
disagrees with the commenter who suggested that EPA use the operational
volumes of oil storage at the facility rather than the shell capacity of
the oil storage containers. The applicability of the SPCC regulation has
always been based on using the shell capacity to calculate total oil
storage capacity of the facility and the same oil storage capacity is
then considered in determining applicability of the qualified facility
options for the facility. The operational volume at a facility may
change frequently and therefore create confusion on which SPCC
requirements apply to the facility and how to certify the SPCC Plan.

Exclude the capacity of containers containing AFVO that would solidify
without heating. EPA disagrees with commenters who requested that EPA
consider excluding from both qualified facility thresholds—that is,
Tier I and Tier II—the capacity of those containers containing AFVOs
that are solid at ambient temperatures. The Agency disagrees because,
similar to AC and other high viscosity oils, these AFVO containers are
typically maintained at elevated temperatures and thus, are capable of
flowing if there is a release from the container. The AFVO could still
spill, flow, and, depending on the location of the facility, could
potentially reach navigable waters or adjoining shorelines.

Increase the storage threshold capacity for Tier II.  EPA disagrees with
the commenter requesting an increase in the Tier II threshold capacity.
EPA is not changing the Tier II threshold and is not amending the total
aboveground oil storage capacity for Tier II qualified facilities in
this final rule.  The Agency addressed the eligibility criteria for the
Tier II qualified facilities in the December 2006 rulemaking and did not
propose to amend the threshold capacity in this rulemaking.

Confirm that facility oil-filled operational equipment is eligible for
Tier I status.  EPA agrees with the commenter that oil-filled
operational equipment are eligible for Tier I status. To clarify, the
maximum individual oil storage container criterion applies to any
aboveground oil storage container at the facility. This includes bulk
storage containers, such as tanks and mobile or portable containers,
oil-filled operational equipment (such as transformers), and other
oil-filled equipment, such as flow-through process equipment.

Define the term “terrorism” in the explanation of criteria. EPA
disagrees with the commenter that a definition of terrorism is needed.
EPA did not propose to define terrorism in the final rule. The Agency
defers to the Homeland Security Act of 2002 which defines terrorism as
“any activity that involves an act that is dangerous to human life or
potentially destructive of critical infrastructure or key resources; and
is a violation of the criminal laws of the United States or of any State
or other subdivision of the United States; and appears to be intended to
intimidate or coerce a civilian population, to influence the policy of a
government by intimidation or coercion or to affect the conduct of a
government by mass destruction, assassination, or kidnapping.” See
Section 2 (15), Homeland Security Act of 2002, P.L. 107−296, 116 Stat.
2135 (2002).  Furthermore, in the December 2006 amendments to the SPCC
rule, EPA identified reportable discharges caused by external factors
beyond the control of the facility owner or operator such as natural
disasters, acts of war, or terrorism. The Agency specifically excluded
vandalism and sabotage from consideration in the reportable discharge
history criterion for qualified facilities and qualified oil-filled
operational equipment. At that time, EPA excluded sabotage and vandalism
from the list of reportable discharge history extreme events because
these are not necessarily beyond the control or planning ability of the
facility owner or operator. (See 71 FR 77272, December 26, 2006.) The
security provisions in §112.7(g) require consideration for acts of
vandalism. The owner or operator of a facility must describe in the Plan
how he/she controls access to the oil-handling, processing and storage
areas and the appropriateness of lighting to both prevent acts of
vandalism and assist in the discovery of oil discharges.

Three-tiered approach to eligibility. EPA has established a three tiered
approach in this rulemaking, however, we do not agree with the 20,000
gallon threshold for Tier II qualified facilities that commenters
suggested. The Agency maintains that the focus of the qualified
facilities alternative is on facilities with simple configurations and
small quantities of oil stored or handled. The Agency recognizes that
regardless of the threshold quantity selected, there are likely to be
facilities just above that threshold that will be excluded. To the
extent that facility owners or operators want to meet the criteria for a
qualified facility, they have the option of reducing oil storage
capacity at their facility by either removing containers from the
facility inventory, or permanently closing containers in accordance with
§112.2. Although EPA acknowledges that farming operations typically
cover large areas, EPA does not believe it is necessary to raise the
threshold for qualified facilities to address the geographic footprint
of farming operations. Instead, EPA has clarified that a facility owner
or operator defines the boundaries of the facility and may separate
components of a facility into multiple facilities based upon
consideration of several factors (see Chapter 4 of this document for
more information on the Definition of Facility.)

VII.B	Provisions for Tier I Qualified Facilities

Issue: EPA proposed to provide the owner or operator of a Tier I
qualified facility with an option to complete a self-certified SPCC Plan
template (proposed as Appendix G to 40 CFR part 112) in lieu of a full
SPCC Plan. By completing the SPCC Plan template, an owner or operator of
a Tier I qualified facility would certify that the facility complies
with a set of streamlined SPCC rule requirements.

COMMENTS

Support

Generally support. Many commenters expressed general support for the
proposed amendments. One commenter stated that “EPA proposes
establishing a self-certified template for some facilities to use if the
facility meets ‘qualified facility’ criteria.  Simpler SPCC Plans
should be allowed for simple facilities (so long as all important spill
prevention and spill response elements are addressed).” (132)

Alternative Approaches Suggested

Certification and approval. One commenter indicated that Tier I
facilities should require PE certification to ensure compliance. (31)
Another commenter suggested that the regulations stipulate requirements
for “qualified personnel”   (e.g., someone who is certified (SP001
Certification, etc.) and familiar with various standards (e.g., UL-142,
UL-2085, API 650, etc.)) that would review and approve the SPCC Plan.
The commenter argued that this would address the potential liabilities
and environmental impacts associated with self-certification by
inexperienced owners and operators. (48, 151) Another commenter asked
EPA to confirm that an Appendix G template may be certified by a PE.
(121)

All facilities should be required to have a facility diagram.  A
commenter suggested that if Tier I facilities are small and simple a
diagram should not be an excessive burden.  (132)

Delete five-year review requirements.  Several commenters recommended
that EPA delete the five-year review requirement. (92, 114, 142)
Commenters recommended that the SPCC Plan should be updated whenever
there is a material change in the facility that may affect discharges;
the five-year review requirement is not necessary. (92, 114)

All facilities should be eligible for streamlined provisions.  A
commenter supported “extension of ‘streamlined’ regulatory
provisions for all facilities.” (82)

All facilities should be able to use the template. One commenter
requested that EPA allow all regulated facilities to use the template.
(98)

Further simplified requirements. One commenter did not support these
proposals, arguing that because qualified facilities are by their very
nature small and less complicated operations, they should not be
required to comply with requirements of the proposed SPCC Plan template
(Appendix G) or prepare and self-certify a SPCC Plan.  The commenter
suggested that Tier I qualified facilities should only meet performance
standards in §112.7 and the lesser proposed security and tank integrity
standards.  (97)

Certification under oath.  Based on non-compliance information in the
docket, a commenter stated that some facilities may not be able to
provide evidence that they satisfy the requirements of 40 CFR Part
112.1(b) because these businesses may not have known about the discharge
reporting requirements.  The commenter suggested that Tier I and II
facility owners should have to demonstrate or certify under oath that no
reportable spill occurred while the facility was subject to Part 112.
The commenter added that facilities could indicate that they satisfy the
regulatory requirements by providing a previous PE approved Plan since
PE certification was required for all facilities existing before August
16, 2002. (31)

Use of contingency planning for Tier I facilities with solid-at-ambient
temperature AFVOS. One commenter requested that EPA modify the Tier I
category requirements to allow contingency planning and on-site control
mechanisms in lieu of secondary containment for containers and flowlines
at qualified Tier I facilities producing, storing or handling
solid-at-ambient-temperature AFVO. (51)

Base the criteria for Tier I qualified facilities on the differentiated
rule requirements. EPA disagrees with the commenter who requested that
instead of eliminating compliance with §112.7(h), EPA should revise the
definition of “qualified facility” to include the absence of such a
rack. The commented added that similar modifications should be made for
all remaining requirements of §112.8 that are eliminated because they
are “not likely” or “tend not” to exist. (82)

RESPONSE

Support

Generally Support. EPA agrees with the commenters that generally
supported the proposal.  The final rule streamlines the requirements for
Tier I qualified facilities by eliminating and/or modifying several SPCC
requirements (for example, facility diagram (§112.7(a)(3)) and certain
provisions that generally do not apply to facilities that store or
handle smaller volumes of oil, such as requirements for transfers taking
place at loading racks (§112.7(h)).

Alternative Approaches Suggested

Certification and approval.  EPA disagrees with the commenters who
requested that EPA require PE certification or “qualified personnel”
review and approval of Tier I Plans. EPA’s basis for developing a
self-certified Plan template which contains a streamlined set of
requirements for facilities that meet the Tier I eligibility criteria is
that the Agency believes that implementation of the requirements in the
template can provide adequate protection and prevent the release of oil
into navigable waters or adjoining shorelines. Due to the simplicity of
these facilities and other factors, EPA believes it is appropriate to
allow a facility owner or operator to self-certify the SPCC Plan. It is
the responsibility of the owner or operator of every SPCC-regulated
facility to ensure compliance with 40 CFR part 112 and ensure
implementation of the Plan.

EPA also disagrees with the commenter who requested confirmation that an
Appendix G template may be certified by a PE. EPA recognizes that the
owner or operator of a Tier I qualified facility may decide to obtain
assistance in the development of an SPCC Plan and want to have a PE
certify the Plan; however, the only required certification for a Plan
following Appendix G is the self-certification completed by the owner or
operator of the facility. EPA is not making the PE certification an
additional option for compliance for Tier I qualified facilities because
the Agency believes that this may suggest that the Agency expects
PE-certified Plans for this subset of qualified facilities. The purpose
of establishing the “Tier I category” was to allow facilities that
satisfy the Tier I eligibility criteria to meet the requirements of the
SPCC rule in a streamlined manner. Therefore, we believe an option for a
PE certification of the Plan template would complicate the rule,
particularly if the owner or operator of the facility wants to develop a
hybrid Plan to allow for environmental equivalent determinations.
However, as we have noted previously, completion of the Appendix G
template is optional. The owner or operator of a Tier I qualified
facility may choose to have a PE-certified SPCC Plan following all the
requirements in §112.7 and subparts B and C, as applicable, or prepare
a hybrid Plan that includes all applicable provisions under the Tier II
requirements. Finally, when inexperience with the SPCC regulation causes
the owner or operator of a Tier I qualified facility concern regarding
potential liabilities and environmental impacts associated with
self-certifying the Plan he may instead choose to have a PE certified
SPCC Plan following all the requirements in §112.7 and subparts B and
C, as applicable.

All facilities should be required to have a facility diagram. The Agency
disagrees with the commenter that suggested that EPA require a facility
diagram for Tier I qualified facilities. Although the Agency does not
intend a facility diagram to be an excessive burden for an owner or
operator to develop, EPA believes the completed template provides the
same information that would be available on a facility diagram for a
Tier I qualified facility. The SPCC rule requirements for a facility
diagram are: (1) to mark the location and contents of each fixed oil
storage container (containers and piping) and the storage areas where
mobile or portable containers are located; and (2) to include all
transfer stations and connecting pipes. In the case of a Tier I
qualified facility, the visual representation of the diagram is not
necessary because EPA believes that these facilities would have few
aboveground oil storage containers with limited transfer areas and very
little piping (if any.) The Oil Storage Container table in Appendix G,
Section III (Table G-2) of the template requires that all oil storage
containers (such as aboveground containers, completely buried tanks, and
oil-filled equipment) be listed, including the contents and oil storage
capacity of each container. The Secondary Containment and Oil Spill
Control table in Appendix G, Section III (Table G-3) requests the
following information for transfer areas and piping: the volume of oil
that could potentially be discharged; and the flow direction of an
uncontained discharge (i.e., a description of where the discharge would
flow if secondary containment fails). A facility diagram for a Tier I
qualified facility would provide minimal additional planning benefit to
prevent an oil discharge from the facility.

Delete five-year review requirements. EPA disagrees that it should
delete the five-year review requirements. The Agency agrees that the
SPCC Plan should be updated whenever there is a material change in the
facility that may affect discharges. However, Tier I qualified
facilities should remain subject to the same requirement to periodically
review and update the SPCC Plan to include more effective prevention and
control technology in order to reduce the likelihood of a discharge as
described in §112.1(b).

All facilities should be eligible for streamlined provisions. EPA agrees
that some streamlined provisions may be appropriate for all
SPCC-regulated facilities. While the Agency has amended the SPCC
regulation in the past (71 FR 77266, December 26, 2006) and in this
action to streamline certain SPCC rule requirements (e.g., security and
integrity testing) for all facilities, the streamlined provisions
included in the Plan template in Appendix G are limited to Tier I
qualified facilities based on the Agency’s judgment that eliminating
and/or modifying certain SPCC requirements was appropriate for
facilities that store or handle smaller volumes of oil and that meet the
eligibility criteria. Other facilities contain larger volumes of oil,
have large oil storage containers on-site, or are more complex and thus,
applying the streamlined requirements adopted for Tier I qualified
facilities would be inappropriate.

All facilities should be able to use the template. EPA disagrees that
the template in Appendix G of 40 CFR 112 should apply to all facilities.
The streamlined provisions included in the Plan template in Appendix G
are limited to Tier I qualified facilities because they were
specifically analyzed and designed for facilities that store limited
quantities of oil, in small oil storage containers and generally have
simple configurations. Other facilities contain larger volumes of oil,
have large oil storage containers on-site, or are more complex and thus,
applying the streamlined requirements adopted for Tier I qualified
facilities would be inappropriate.

Further simplified requirements. EPA disagrees with the commenter that
suggested that EPA simplify the Plan requirements for a Tier I qualified
facility to include only the general requirements under §112.7 and the
security and integrity testing requirements. However, the commenter did
not provide any data to support, and EPA does not agree with,
eliminating the specific requirements under Subparts B and C, such as
those pertaining to facility drainage and bulk storage containers.
Therefore, EPA did not incorporate this change into the final action.

Certification under oath.  EPA agrees that with the commenter who
suggested that the owner or operator of a regulated facility be required
to certify under oath that he has met the SPCC requirements. Section
§112.6(a)(1) requires the owner or operator certify that: (i) he is
familiar with the applicable requirements of 40 CFR part112; (ii) he has
visited and examined the facility; (iii) he has prepared the Plan in
accordance with accepted and sound industry practices and standards;
(iv) he has established procedures for required inspections and testing
in accordance with industry inspection and testing standards or
recommended practices; (v) he will fully implement the Plan; (vi) the
facility meets the qualification criteria in §112.3(g)(1); (vii) the
Plan does not deviate from any requirement of this part as allowed by
112.7(a)(2) and 112.7(d); and (viii) the Plan and individual(s)
responsible for implementing this Plan have the approval of management,
and the facility owner or operator has committed the necessary resources
to fully implement this Plan. EPA believes that inclusion of the
self-certification statements in the Plan and signature of the owner or
operator is sufficient to demonstrate that he understands his
responsibilities under 40 CFR part 112. Regardless of whether the owner
or operator knew of his responsibility to report discharges to navigable
waters or adjoining shorelines from the facility as required under 40
CFR 110, the owner or operator of the facility should know about past
discharges of oil from the facility and therefore be able to attest to a
discharge history criterion for the facility.

The owner or operator of a facility in operation prior to August 16,
2002 must maintain the PE certified Plan until he amends it prior to the
compliance date in §112.3(a)(1). EPA has revised the SPCC requirements
in 2002, 2006 and again in 2008. In order to comply with the rule, the
owner or operator of a Tier I qualified facility must ensure that the
SPCC Plan complies with the current regulatory requirements. A copy of a
previous PE certified Plan does not account for changes made to the SPCC
regulation since 2002. Furthermore, a copy of a past PE certified Plan
for the facility may not necessarily satisfy the current SPCC regulatory
requirements.

Use of contingency planning for Tier I facilities with solid-at-ambient
temperature AFVOS. EPA does not agree that Tier I qualified facilities
should be allowed to substitute contingency planning and on-site control
mechanisms for secondary containment for AFVOs that are
solid-at-ambient-temperatures. These oils have the potential to
discharge into navigable waters or adjoining shorelines because they are
generally stored at elevated temperatures and thus, are capable of
flowing if there is a release from the container. Therefore, the SPCC
requirements such as secondary containment should continue to apply to
these AFVOs.  However, it should be noted that the SPCC rule only
applies to facilities that, due to their location, can reasonably be
expected to discharge oil to navigable waters or adjoining shorelines.
In determining whether there is a reasonable expectation of discharge,
an owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. If a facility owner or
operator determines that there is a reasonable expectation of a
discharge of oil to navigable waters or adjoining shorelines from any
single oil container (including a container storing AFVOs), and other
rule applicability criteria are met, then all oil containers at the
facility are subject to the rule’s requirements (except as otherwise
exempted).

Base the criteria for Tier I qualified facilities on the differentiated
rule requirements. EPA disagrees with the commenter who suggested that
the Tier I qualified facility criteria be amended to require that the
owner/operator confirm the list of rule requirements eliminated from the
Plan template do not apply at the facility. EPA considered this
approach, however, the Agency is concerned that this adds unnecessary
complexity to the initial determination of eligibility for a Tier I
qualified facility. EPA believes that the current criteria identify
those facilities with simple operations and low oil storage capacities
for which the differentiated requirements are appropriate.

VII.C 	SPCC Plan Template

Issue: The Agency sought comments on whether the proposed SPCC Plan
template in Appendix G for Tier I qualified facilities addresses the
concerns of owners and operators of facilities with relatively smaller
volumes of oil, while maintaining the environmental protection intended
by the regulation. The Agency also sought comments on the clarity and
ease-of-use of the Plan template.

COMMENTS

Support

Generally supportive of template format and/or content.  (51, 59, 61,
142)

Oppose

Generally oppose.  One commenter argued that the template provides no
assurance of compliance and will be ignored by small facilities; the
commenter suggested that EPA must require PE certification. (31) Another
commenter suggested that the template does not provide enough
instruction and will encourage facility operators that have little
knowledge of part 112 to develop SPCC Plans that are meaningless. (29)
Other commenters argued the template is burdensome and that facilities
should be able to demonstrate compliance by self-certifying and
referencing equivalent prevention plans and/or impracticability
determinations. (61, 70, 92, 104, 109, 114, 142) Commenters reasoned
that a self-certification would serve to maintain the same level of
environmental protection, but would represent a significant paper work
reduction for the smallest facilities.  (61, 92)

Alternative Approaches Suggested

Increase availability of template. Commenters requested that EPA publish
the template as guidance or an educational primer for Tier I facilities
and make it readily available on the EPA website. (61, 92)  Another
commenter asked whether EPA intended to supply the template or would
owners and operators need to purchase it from an engineering firm or
some other outside entity. (24)

Allow for equivalent/flexible plan approach. Several commenters urged
EPA to allow for an equivalent plan not using the template. (29, 43, 72,
113, 142)  One commenter stated that “some Tier I-eligible facilities
may prefer to maintain a PE certified plan that does not follow the
proposed template. These facilities should be subject to the same relief
from specific requirements that is proposed for Tier I facilities, as
they present the same risk of a discharge if not less.” Two
commenters suggested that the template could be slightly modified to
include SPCC requirements for the "Emergency Response and Contingency
Plans" (ER&C plans) submitted to both the Occupational Safety, and
Health Administration and the Department of Transportation. (45, 98)
Another commenter stated that under the “one plan” approach,
construction site owners and operators of Tier I qualified facilities
could use their NPDES-required SWPPP materials to record/update their
spill prevention and response practices, supplementing these materials
as needed to ensure compliance with all applicable NPDES and SPCC
requirements. (142) Another commenter recommended that an Integrated
Contingency Plan (ICP) or other plan format is allowable to serve as a
facility spill prevention, control and countermeasures plan if it meets
all plan requirements identified in Appendix G, as such a facility would
not have to strictly follow the actual template in Appendix G. (72)

Clarify that the template is a model.  Commenters suggest that EPA
clearly indicate that the template may be modified as necessary to meet
industry or facility-specific needs and requirements, (61, 114, 142),
without losing Tier I status. (142) One commenter requested that EPA
finalize the template only after interaction with the agricultural
community to make the template user friendly. (68) Another commenter
requested that EPA revise the template and stated that this was being
addressed by an industry group working with the Small Business
Administration (SBA). (104, 141)

Environmental equivalence and Impracticability determinations.  A
commenter suggested that EPA allow, as part of the Appendix G template,
an owner/operator of a Tier II facility to use a “hybrid” approach,
as allowed for Tier II qualified facilities, to provide the flexibility
to deviate from the rule requirements when the owner or operator
determines that secondary containment is impracticable or when there is
an alternative measure that provides equivalent environmental protection
to an SPCC rule requirement. (141)

Multi-facility SPCC Plans.  Commenters stated that “multiple-facility
SPCC Plans covering individual facilities that would be Tier I-eligible
should also be allowed to use the template, and urge EPA to specifically
allow it in the regulation.” (31, 43)  One commenter recommended
modifications of §112.2 so that multiple facilities can be included
within a single Plan. (31)

Online submission.  A commenter suggests that EPA provide for online
submission of template-based plan for increased compliance, to provide
information to EPA in response actions and to avoid the generation of
paper copies. As an alternative, the commenter suggested that EPA
require submission of a notification or certification of SPCC Plan
completion similar to what is required for facilities that are exempt
from stormwater discharge permitting.  (82)

Use outline format. A commenter recommends “omitting the template
entirely and converting it into a proposed outline format that is
available in Microsoft Word and other commonly used programs.”  (29)

Template is optional. A commenter urged EPA to clarify that qualified
Tier I qualified facilities may complete a full self- or PE-certified
plan should they choose.  (61)

Navigable waters shorthand.  A commenter is concerned that in Appendix
G, by using the shorthand “…into navigable waters or adjoining
shorelines”, EPA is inappropriately limiting the scope of the
regulation.  The commenter recommends replacing current language with
“discharges as described in §112.1(b).”  (118)

State/local requirements. Commenters request that EPA add sections or
otherwise allow for coordination with state requirements within
template.  (77, 110, 119, 121, 142, 154, 157, 160, 161)

Refer to template as “document.”  A commenter suggests that EPA
refer to a complete template as “document” rather than template.
(124)

Allow for self-certification statement only. Facilities should be able
to demonstrate compliance by self-certifying and referencing equivalent
prevention plans and/or impracticability determinations. (56, 61, 70,
92, 104, 109, 114, 142) Several commenters recommended significant
changes to the self-certification statement in Section I of the template
so that if could be used alone or as part of a comprehensive Tier I
model Plan template. (61, 92, 114) Commenters reasoned that a
self-certification would serve to maintain the same level of
environmental protection, but would represent a significant paper work
reduction for the smallest facilities.  (61, 92)

Suggested Simplifications for Section I

Commenters made several recommendations to simplify or clarify the
template:

Refer to Plan template as Self-Certification Statement. Revise the text
of the template to reference a self-certification statement wherever
“plan template is found: “Tier I facility owners and operators have
the option of completing just the Self-Certification Statement below or
the entire Plan template. The Self-Certification Statement or Plan
template constitutes the SPCC Plan for the facility. . . .” (61, 114)
Another commenter recommends taking out every reference to plan template
and replacing it with “self-certification statement.” (92)

Oil storage containers. In §I.6.a and §I.6.c, “oil storage” could
be modified by “aboveground” for clarity. (124)

Oil-filled equipment and other non-exempt oil storage containers.
Template Section I, Self-Certification Statement (112.6(a)(1)), Item 6.a
should be revised to read "The aggregate oil storage capacity, including
oil-filled equipment and all other non-exempt oil storage containers
described in Table III.2 of this Plan, is 10,000 U.S. gallons or less".
The commenter proposed this change to increase the likelihood that
self-certifying facilities correctly understand that the 10,000 gallon
limit does not apply to just conventional bulk storage containers (e.g.,
tanks) but to all non-exempt containers (including oil-filled
equipment). (132)

Discharge criteria. Template Section I, Self-Certification Statement
(112.6(a)(1)), Item 6.b should eliminate the excessive discharge
allowances to qualify as a qualified facility. The commenter believes
that no facility with multiple oil discharges involving hundreds or
thousands of gallons of oil should be afforded regulatory relief by EPA.
(132)

Secondary containment. Template Section I, Self-Certification Statement
(112.6(a)(1)), Item 7 should be amended to add the following language:
"Each bulk storage container is provided with secondary containment
adequate for the entire volume of the container plus a reasonable amount
for precipitation". The commenter proposed this addition asserting that
dedicated secondary containment for bulk storage containers is the most
important means of preventing oil discharges, and that EPA obfuscates
the requirement to provide this secondary containment in the proposed
certification by referring only to broad sections of the Part 112 rule
which few people at small facilities are likely to read, assuring a
continued high rate of non-compliance with the key requirement to
provide secondary containment for bulk storage containers. (132)

Template format. The last part of the Template Section I certification
includes a section of five additional bullet items pertaining to other
facility obligations.  These items should be numbered or lettered so
that they can be accurately referenced by EPA and regulated facilities,
for instance, items 9.a – 9.e.  (132)

NRC notification. The first bullet item should be revised to read:
“To immediately report an oil discharge causing a sheen, slick, or
sludge deposition in navigable waters and adjoining shorelines to the
National Response Center (NRC) and to other appropriate state or local
authorities. (132) The commenter believes this change is necessary so
that facilities know that immediate reporting is required under 40 CFR
110.6 and so they know what types of oil discharges must be reported.
(132)

Suggested Simplifications for Section II

Five-year reviews. Delete all of the text in Section II referencing the
five-year review requirement in §112.5(b). (61, 114)

Recertification of technical amendments.  Delete the following language
from the checklist in Section II: “Any technical amendments to this
Plan will be re-certified in accordance with Section I of this Plan
template. [§112.6(a)(2)] [See Technical Amendment Log in Attachment
1.2].” (61, 114)

Suggested Simplifications for Section III

Commenters made several recommendations to simplify or clarify the
template:

Types of oil storage containers. In §III.1, the sentence describing the
table provides helpful simplified guidance about the types of storage
containers to be listed. The commenter argued that as proposed, the
simplified guidance provides only one criterion—“55 gallons or
more”—for including “aboveground containers and completely buried
tanks” in the list; however, because of its simplified format, the
guidance inadvertently includes for listing a motive power container,
which is categorically exempted under §112.1(d)(7), that is 55 gallons
or larger. To avoid general inclusion of exempted aboveground containers
in the list, the commenter requested that the simplified guidance could
be modified as follows: “… all oil storage containers (i.e.,
completely buried tanks and non-exempted aboveground containers) …”
(124) Another commenter recommended change the parenthetical to
“(aboveground containers and completely buried tanks).” (61)

Failure mode.  At 72 FR 58434 in §III.2, ‘Secondary Containment…’
below the box and above the table, the form asks the facility to
identify ‘the mode of failure; the flow direction and quantity of the
discharge; and secondary containment method and containment capacity’
for the containers listed.  This is inconsistent with proposed Section
112.7(c), where owners of oil-filled equipment need only indicate ‘the
typical failure mode, and the most likely quantity of oil that would be
discharged.’  EPA should also include the subsequent phrase from this
section of the regulations, ‘Secondary containment may be either
active or passive.’  (77, 119)

Immediate NRC reporting. The Template Section III Part 7 heading should
be revised to read: “Immediate National Response Center (NRC)
Notification Procedure (40 CFR 112.7(a)(4) and (a)(5)”.  The commenter
stated that this change will enforce the expectation that NRC receive
immediate notification.  (132)

Clarify references to secondary containment. In the opening description
of §III.2, the references to secondary containment do not include the
word “secondary”; for clarity, “secondary” could be inserted as
appropriate.  (124)

Additional footnotes. The table in Template Section III Part 2 should be
revised as follows:  The table heading “Secondary containment capacity
(gallons)” should also have the ** superscript, although standard
numbered superscripts should be used.  Adding the footnote reference
increases the probability that facilities will understand the
requirement to provide full secondary containment (as opposed to the
less protective general secondary containment options) for bulk storage
containers. (132)

Emphasize information in Table III-2 footnotes. Commenters suggested
that the secondary containment information in the footnotes for table
III-2 be moved to the discussion preceding the tables. (61, 92) The
commenters believe that this information describes what is needed for
compliance and is valuable as a primer or learning tool. (61, 92, 114).

Simplify secondary containment information (Section III. Tables 1 & 2).
One commenter stated that simplification is appropriate because at the
smallest facilities, operations are generally straightforward and oil
storage may consist of a single container or a series of 55-gallon
drums. (92) Two commenters recommended that EPA move all of the
explanatory information for Table 1 and 2 to the beginning of Section
III. (61, 114) The same commenters requested that EPA revise Table 1 by
adding secondary containment information; rename Table 2
“Mobile/Portable Containers, Piping, Product Transfer Areas,
Operational Equipment” and eliminate 2 columns: “Direction of flow
for uncontained discharge” and “Secondary containment capacity
(gallons); remove the word “Secondary” from the column heading
“Secondary containment method; and add a column for “Location of
containment measures.”  (61, 114)

Reports to the Regional Administrator. The Template Section III Part 6
second table should be revised as follows:  The heading should be
revised to read “You must submit the following to the EPA Regional
Administrator (RA).”  In EPA’s proposed language, “RA” appears
before it has been defined.  The Contact List table should be revised to
include the EPA Regional Administrator.  (132)  EPA should also explain
the differences and purposes of the NRC and RA notifications.  (132) The
untitled, solitary box that immediately precedes §III.7 contains
informational elements that are listed under §112.4(a). Below it on the
same page, §III.8 addresses the “SPCC Spill Reporting Requirements”
under §112.4; however, it does not list the informational elements to
be reported to the Regional Administrator. Because this box does list
these elements, it should be moved to §III.8, where it was likely
intended to be. (124)

Designation of tables and footnotes. All tables in the template should
be numbered or lettered (e.g., Table III.2) so they can be more directly
referenced by EPA and the facility.  Also, the notes appearing at the
bottom of some tables should be referenced using numbered superscripts,
rather than symbols such as *, **, +, etc., which quickly become
confusing when additional notes are added. (132)

NRC reporting of discharges via runoff. EPA should add NRC reporting
requirements if an oil discharge from a facility to navigable waters is
imminent by way of stormwater runoff from a facility that is not located
directly on the shores of a navigable water. (132)

Suggested Simplifications for Attachments

Five-year reviews. Delete Attachment 1 for five year reviews. (61, 114)

Simplify Attachment 2. Oil Spill Contingency Plan and Checklist. The
checklist shown in the table is too extensive for Tier I qualified
facilities. Focus on the need to have written emergency and notification
procedures in place in the event of a discharge, and the need to have
written record of who to notify and how to contact them. (61, 92, 114)
Remove this text from the checklist: “109.5–Development and
implementation criteria for State, local and regional oil removal
contingency plans.” (61, 114)  Remove the following items from the
checklist: (a); (b)(1); (b)(3); (b)(4); opening text of (c); (c)(1);
(c)(3); (d)(2)-(d)(6) and footnote at the end of the checklist. (61)
Consolidate the following items on the checklist: opening text of (b)
and (b)(2) and opening text of (d) and (d)(1). (61, 114)

Revise the Onshore Facility Checklist. Amend the Onshore Facility
Checklist to indicate that not all provisions may be applicable to all
owner/operators.  (61, 114)   [Note: Commenters submitted revised model
templates.]

Category I tanks.  A commenter states that on Attachment 3.2 of Appendix
G to Part 112 (Tier I Qualified Facility SPCC Plan); the table implies
that ‘Container Size and Design Specification’ for 1,101 to 5,000
gallon with sized secondary containment requires that the tank be
elevated for visual inspection (and not trigger the requirement for
non-destructive testing). The commenter stated that according to Table
5.5 in STI SP-001 titled, ‘Table of Inspection Schedules’, a
Category 1 tank, described in Table 5.2 includes an ‘AST with
secondary containment dike/berm’ and only requires Visual Inspection
(This tank is not required to be elevated). The commenter stated that
the table in our example SPCC Plan still illustrates a conflict between
‘guidance’ and what is actually required by the standard. (28)

Visual inspection requirements. Attachment 3.2 (Bulk Storage Container
Inspection Schedule) lists inspection requirements for various sizes of
oil containers.  The inspection requirements should be revised to
include visual inspection for signs of container support deterioration,
evidence of leaking valves and piping, and secondary containment valves
being closed.  (132)

Discharge notification. Attachment 4 (Discharge Notification Form)
should be modified to make it clear that NRC reporting is required
immediately upon a discharge to navigable waters.  The last section of
the table should be revised to include a check box for local agencies.
(132)

RESPONSE

Support

Generally supportive of template format and/or content.  The Agency
agrees with the commenters who supported the template format and
content.  However, EPA has modified the Plan template based on specific
comments received. The SPCC Plan template for Tier I qualified
facilities is found in Appendix G of the final rule.

Oppose

Generally oppose.  EPA appreciates that some commenters find the Plan
template in Appendix G is too burdensome for Tier I qualified
facilities, while other commenters believe that it is too easy to use.
The Plan template is designed to be a simple and straightforward SPCC
Plan that includes only the requirements that should apply to Tier I
qualified facilities. EPA intends to provide supplementary guidance on
the Agency’s website to assist owners and operator of Tier I (and Tier
II) qualified facilities in the development of an SPCC Plan for these
facilities. We expect that such additional guidance will help those
facilities that choose to utilize the Appendix G template to comply with
the SPCC Plan requirement.

Alternative Approaches Suggested

Increase availability of template. Owners and operators of Tier I
qualified facilities will not need to purchase the template from
engineering firms or other outside entities. The template will be
available as Appendix G to 40 CFR 112 and can be accessed in the Federal
Register action finalizing these amendments as well as the CFR. EPA
agrees with commenters about the need for additional guidance. EPA
intends to provide supplementary guidance for Tier I (and Tier II)
qualified facilities to assist in the development of an SPCC Plan for
these facilities which will be available on the Agency’s website.  We
expect that such additional guidance will help those facilities that
choose to utilize the Appendix G template to comply with the SPCC Plan
requirement.

Allow for equivalent/flexible plan approach. EPA agrees that it is
appropriate to allow the use of a flexible Plan format for Tier I
qualified facilities that, for example, want to combine multiple local,
state or federal regulatory requirements into one Plan, as long as a
cross-reference is provided. Therefore, EPA is amending the rule
language in §112.6(a)(1) to allow for a flexible Plan format for owners
or operators of Tier I qualified facilities that do not choose to use
the template provided in Appendix G of the rule. The amended rule text
states that if you do not follow the sequence specified in this section
for the Plan, you must prepare an equivalent Plan acceptable to the
Regional Administrator that meets all of the applicable requirements
listed in this part, and you must supplement it with a section
cross-referencing the location of requirements listed in this part and
the equivalent requirements in the other prevention plan. However, if
the Appendix G template is not used, then an equivalent Plan must be
prepared in writing, and include all requirements applicable to Tier I
qualified facilities.  For example, the owner or operator of a facility
that has developed a Stormwater Pollution Prevention Plan (SWPPP) under
the National Pollutant Discharge Elimination System (NPDES) that meets
all of the applicable SPCC regulatory requirements in §112.6(a)(3) and
Appendix G may use the SWPPP as the SPCC Plan. However, the SWPPP must
include a cross-reference and the self-certification statements in
§112.6(a)(1) and Appendix G. An owner or operator of a Tier I qualified
facility may use the template in Appendix G to comply with the
regulation or use it as a model and modify it as necessary to meet the
facility-specific needs, as long as all applicable rule requirements are
included in the SPCC Plan. The following sample cross-reference is
intended to be an example of the owner/operator’s development of such
a cross-reference.

Sample Cross Reference for Plans Using Local, State or Other Federal
Regulations to Satisfy SPCC Requirements

SPCC Provision	Description of Requirement	Plan Page

§112.4	Spill reporting requirements

§112.5(b)	Five-year Plan review

§112.6(a)(1)	Preparation and self-certification of the Plan

§112.6(a)(2)	Certification of technical amendments

§112.6(a)(3)(i)	Failure analysis

§112.6(a)(3)(ii)	Bulk storage container secondary containment

§112.6(a)(3)(iii)	Overfill prevention

§112.7(a)(3)(i)	Address the type of oil in each container and its
storage capacity

§112.7(a)(3)(iv)	Address countermeasures for discharge discovery,
response, and cleanup

§112.7(a)(3)(vi)	Provide contact list and phone numbers for those to be
contacted in case of a discharge

§112.7(a)(4)	Provide NRC notification information

§112.7(a)(5)	Describe procedures you will use when a discharge occurs

§112.7(c)	Provide appropriate containment and/or diversionary
structures or equipment to prevent a discharge as described in
§112.1(b)

§112.7(e)	Conduct inspections and tests in accordance with written
procedures that you develop for the facility

§112.7(f)	Train oil-handling personnel in the operation and maintenance
of equipment to prevent discharges; discharge procedure protocols;
applicable pollution control laws, rules, and regulations; general
facility operations; and the contents of the facility Plan.

§112.7(g)	Implementation of security measures to prevent unauthorized
access to oil handling, processing, and storage area

§112.7(k)	Requirements related to oil-filled operational equipment

§§112.8(b)(1), 112.12(b)(1)	Restrain drainage from diked storage areas

§§112.8(b)(2), 112.12(b)(2)	Use valves of manual, open-and-closed
design for the drainage of diked areas; if facility drainage drains into
a watercourse, inspect and drain uncontaminated retained stormwater

§§112.8(c)(1), 112.12(c)(1)	Do not use a container for oil storage
unless its material and construction are compatible with the material
stored and conditions of storage such as pressure and temperature

§§112.8(c)(3), 112.12(c)(3)	Drainage of uncontaminated rainwater from
the diked area into a storm drain or discharge of an effluent into an
open watercourse

§§112.8(c)(4), 112.12(c)(4)	Protect completed buried storage tanks
from corrosion and regularly leak test buried metallic storage tanks.

§§112.8(c)(5), 112.12(c)(5)	Do not use partially buried or bunkered
metallic tanks for the storage of oil unless protected from corrosion.

§§112.8(c)(6), 112.12(c)(6)	Administer integrity testing for storage
tanks

§§112.8(c)(10), 112.12(c)(10)	Promptly correct visible discharges
which result in a loss of oil from the container

§§112.8(d)(4), 112.12(d)(4)	Regularly inspect all aboveground valves,
piping and appurtenances

§112.9(b)	Requirements for oil production facility drainage

§112.9(c)(1)	Material compatibility requirements for containers at oil
production facilities

§112.9(c)(2)	Secondary containment requirements for tank battery,
separation, and treating facility installations at oil production
facilities.

	§112.9(c)(3)	Container inspection requirements at oil production
facilities.

	§112.9(c)(4)	Overfill prevention requirements at oil production
facilities.

	§112.9(c)(5)	Requirements for flow-through process vessels at oil
production facilities.

	§112.9(d)(1)	All aboveground valves and piping associated with
transfer operations are inspected periodically and upon a regular
schedule.

§112.9(d)(3)	For flowlines and intra-facility gathering lines that do
not have secondary containment in accordance with §112.7(c), prepare an
oil spill contingency plan and a written commitment of resources (except
when the facility has submitted a Facility Response Plan in accordance
with §112.20)

§112.9(d)(4)	Prepare and implement a written program of
flowline/intra-facility gathering line maintenance

§112.10(b)	Position or locate mobile drilling or workover equipment so
as to prevent a discharge as described in §112.1(b)

§112.10(c)	Provide catchment basin or diversion structures to intercept
and contain discharges

§112.10(d)	Install a blowout prevention assembly and well control
system before drilling

Clarify that the template is a model. EPA agrees that an owner or
operator of a Tier I qualified facility may use the template in Appendix
G to comply with the regulation or use it as a model and modify it as
necessary to meet the facility-specific needs, without losing Tier I
status, as long as all applicable rule requirements are included in the
SPCC Plan. EPA is finalizing the template in this action following
review and comments from members of the regulated community, including
agriculture. The Agency will develop additional guidance on the template
for Tier I qualified facilities to assist in the completion of the
template.

Environmental equivalence and impracticability determinations. EPA
disagrees with the commenter and has decided not to allow Tier I
facilities to utilize a “hybrid approach,” since the primary purpose
of developing the “Tier I category” is to allow those facilities
with simple oil storage configurations to have a relatively simple means
to comply with the SPCC requirements. Allowing Tier I facilities to
utilize a hybrid approach would seem to defeat that purpose. If a
facility qualifies to use the Appendix G template but has site-specific
factors that make it difficult to use the template as written, then the
Appendix G Plan template may not be an appropriate tool for the facility
to address the oil spill planning elements for the facility. Instead,
the facility could elect to comply with the SPCC requirements as a Tier
II qualified facility—that is, self-certify that they comply with the
full set of rule requirements in §112.7(c) and subparts B and C, as
applicable rather than the differentiated requirements designed
specifically for facilities with simple oil storage configurations. For
example, if the owner or operator cannot provide secondary containment
for a bulk storage container at a Tier I qualified facility because it
is impracticable, then it is appropriate that the Plan include a
facility diagram (§112.7(a)(3)) to show where the container is located
at the facility and a prediction of the direction, rate of flow and
quantity of oil that may be discharged from the container
(§112.7(b)).); however, these are two provisions that are amended in
the Tier I qualified facility requirements. In this case, EPA believes
it is appropriate to require the owner or operator to comply with
requirements that would not otherwise apply to Tier I qualified
facilities because this information may be necessary as part of the
spill prevention practices for the facility. Therefore, the owner or
operator of the facility may choose to develop a hybrid Plan following
the Tier II qualified facility requirements in §112.6(b) or a
PE-certified SPCC Plan following §112.7 and subparts B and C, as
applicable.

Multi-facility SPCC Plans. EPA does not agree that a modification to
§112.2 is necessary to allow multiple facilities to be included in a
single SPCC Plan. A multi-facility Plan accomplishes this objective by
allowing the owner/operator of multiple SPCC-regulated facilities to
develop one SPCC Plan that combines the similar elements of individual
facilities into one Plan as long as the Plan also addresses the
site-specific information for each facility. EPA agrees with commenters
that it is appropriate to allow the owner or operator of several
facilities that each individually meets the criteria for a qualified
facility to develop a multi-facility SPCC Plan in accordance with the
Tier I requirements. The final rule allows flexibility in the Plan
format to accommodate a multi-facility Plan approach for Tier I
qualified facilities. The owner or operator of the facility is still
required to meet all applicable rule requirements in the Plan as
described in §112.6(a)(3) and Appendix G.

Online submission.  EPA disagrees with the commenter that online
submission of the template-based Plan will increase compliance with the
SPCC regulation. Plan implementation is essential to compliance with the
SPCC requirements while submission of the Plan or notification of
completion of the Plan may only demonstrate compliance with Plan
preparation requirements and does not guarantee implementation of the
Plan.  Additionally, there is currently no requirement for the owner or
operator of any regulated facility to submit an SPCC Plan to the Agency,
unless requested to do so by the Regional Administrator. The Agency
requires that owners and operators maintain a copy of the Plan at the
facility, in accordance with §112.3(e). The Agency did not propose this
modification to the rule and this change is outside the scope of this
action.

Use outline format. EPA does not agree with the comment to omit the
template from the regulation because it includes the minimum
requirements for a Plan for Tier I qualified facilities. However, EPA
will be developing guidance to aid in the completion of the template and
will consider making it available in an electronic format that can be
completed such as in Microsoft Word.

Template is optional. The Agency agrees with the commenter and
emphasizes that use of the Plan template approach is optional. An owner
or operator of a Tier I qualified facility can choose to prepare and
implement either a full PE-certified SPCC Plan or a self-certified SPCC
Plan according to all of the requirements of §112.6(b) in order to
comply with the requirements under 40 CFR part 112.

Navigable waters shorthand. EPA disagrees with the commenter and did not
adopt the recommendation to amend the template to change “navigable
waters or adjoining shorelines” to “discharges as described in
§112.1(b).” EPA refers to navigable waters or adjoining shorelines in
the template to make the document easier to understand and more
user-friendly; the Agency does not consider this to be a limitation in
the scope of the rule. The language in §112.7 also applies to these
facilities and uses the term “discharges as described in
§112.1(b).”

State/local requirements. EPA does not agree with the recommendation to
amend the template to include a section for state and local
requirements. The Agency does not believe that it is necessary for the
owner or operator of a facility to address state or local requirements
as part of the SPCC Plan. However, the Agency is amending the rule
language to allow for a flexible Plan format for Tier I qualified
facilities. This will allow those facility owners or operators to
address local, state and/or other federal requirements in one Plan for
oil spill prevention planning purposes if they so choose. The Agency
will also clarify in rule text that §112.7(j) does not apply to Tier I
qualified facilities.

Refer to template as “document.”  EPA agrees with the commenter that
once the owner or operator completes Appendix G to include site-specific
information, the document generated is an SPCC Plan for the facility.
However, EPA did not adopt the recommendation to amend the template to
refer to the Plan format in Appendix G as document rather than
“template.”

Allow for Self-Certification statement only. EPA disagrees with
commenters who maintain that a self-certification statement alone is
sufficient to replace a SPCC Plan that includes description of equipment
and procedures to prevent, prepare for and respond to oil discharges to
navigable waters and adjoining shorelines. The SPCC Plan template is
designed to address streamlined SPCC requirements for Tier I qualified
facilities while reducing the paperwork burden for these facilities. The
Agency stated in the preamble to the December 26, 2006 amendments (71 FR
77266) that EPA “believe[s] that a facility owner or operator cannot
effectively implement an oil spill prevention program, or any other
program (business or otherwise), without documentation of that
program’s action items. As a matter of practice, it would be extremely
difficult for a facility owner or operator to be able to follow the
regulatory requirements and to comply with all the recordkeeping
components without the documentation that is the Plan itself. The Plan
also serves as an important communication and training tool for both
management and oil-handling personnel at the facility. The sole action
of having to document compliance with all of the requirements can assist
in uncovering flaws in the program’s implementation, and may serve as
a tool to correct them. Additionally, the documentation of compliance
with the rule’s requirements in a written Plan serves as a
facility-specific oil spill response and prevention planning exercise
which is designed to improve oil spill prevention.” However, an owner
or operator of a Tier I qualified facility has the flexibility to use
the template in Appendix G to comply with the regulation or use it as a
model and modify it as necessary to meet the facility-specific needs.
The owner or operator may also use other oil spill prevention plans
developed for the facility and amend them as necessary to comply with
the SPCC requirements for a Tier I qualified facility. For example, the
owner or operator of a facility that has developed a Stormwater
Pollution Prevention Plan (SWPPP) under the National Pollutant Discharge
Elimination System (NPDES) that meets all of the applicable SPCC
regulatory requirements in §112.6(a)(3) and Appendix G may use the
SWPPP as the SPCC Plan. However, the SWPPP must include a
cross-reference and the self-certification statements in §112.6(a)(1)
and Appendix G.

Suggested Simplifications for Section I.

EPA agrees with several of the commenters that recommended revisions to
the text proposed as Appendix G of 40 CFR part 112 to either simplify or
clarify use of the template.  EPA has made the following amendments:

Oil storage containers. EPA will clarify that it is referring to
aboveground oil storage capacity in Section I, Part 6.a and 6.c of
Appendix G.

Oil-filled equipment and other non-exempt oil storage containers. EPA
will clarify which oil storage containers at the facility must be
included when calculating the total facility oil storage capacity to
determine eligibility of the facility for Tier I and II requirements -
that is, any aboveground container at the facility that contains oil and
that is not otherwise exempt from the rule. This includes bulk storage
containers, such as tanks and mobile or portable containers; oil-filled
operational equipment (such as transformers); and other oil-filled
equipment, such as flow-through process equipment. Exempt containers
that are not included in the capacity calculation include: any container
with a storage capacity of less than 55 U.S. gallons of oil; storage
containers used exclusively for wastewater treatment; permanently closed
containers; motive power containers; hot-mix asphalt containers; heating
oil containers used solely at a single-family residence; pesticide
application equipment or related mix containers; and certain produced
water containers.

Template format. EPA will include formatting suggestions that make the
template easier to use and technical corrections, such as providing
letter references for the owner or operator’s obligations in the
certification statement; numbering tables; using numbered or lettered
superscripts; identifying acronyms when they are first used in the
document (for example, Regional Administrator (RA) in Section III, Part
6); and moving the spill reporting requirements to the correct section
in the template (from Section III, Part 6 to Section III, Part 8.)

NRC notification. EPA will clarify that the notification mentioned in
the first of five bullets before the signature block must be conducted
immediately following identification of a discharge to navigable waters
or adjoining shorelines. However, the Agency is not adding the phrase
“causing a sheen, slick or sludge deposition” in reference to
discharges to navigable waters or adjoining shorelines because this
phrase does not fully characterize discharges of oil that may be harmful
as described in 40 CFR 110.3. Discharges of oil in such quantities that
may be harmful include discharges of oil that violate applicable water
quality standards, or cause a film or sheen upon or discoloration of the
surface of the water or adjoining shorelines or cause a sludge or
emulsion to be deposited beneath the surface of the water or upon
adjoining shorelines.

Suggested Simplifications for Section II

EPA did not make any modifications to the template in response to
comments on Section II of the template.

Suggested Simplifications for Section III.

EPA agrees with several of the commenters that recommended revisions to
the text proposed as Appendix G of 40 CFR part 112 to either simplify or
clarify use of the template.  EPA has made the following amendments:

Types of oil storage containers. EPA will clarify which containers are
exempt from the regulation and not required to be included in the table
in Section III, Part 1. Exempt containers that are not included in the
capacity calculation include: any container with a storage capacity of
less than 55 U.S. gallons of oil; storage containers used exclusively
for wastewater treatment; permanently closed containers; motive power
containers; hot-mix asphalt containers; heating oil containers used
solely at a single-family residence; and pesticide application equipment
or related mix containers. Although the criteria to determine
eligibility for qualified facilities focuses on the aboveground oil
storage containers at the facility, completely buried tanks at a
qualified facility, unless they are otherwise exempt, such as USTs that
are subject to all of the technical requirements of 40 CFR part 280 or a
State program approved under 40 CFR part 281, are still subject to the
rule requirements and must be addressed in the template; however, they
are not counted towards the qualified facility threshold because they
are not aboveground containers. Finally, certain produced water
containers are exempt from the rule, however, this exemption is based on
certification by a PE and therefore would not be included in a
self-certified Tier I qualified facility SPCC Plan. The owner or
operator of a Tier I qualified facility would not be eligible to develop
a self-certified SPCC Plan following the template in Appendix G and have
a produced water container exempt from the regulation because the
exemption requires a PE certification. (See section M of this preamble
for further discussion on produced water containers.)

Failure mode. EPA will not remove mode of failure in the Secondary
Containment table in Appendix G. This table addresses rule requirements
for both §112.7(b) and (c) along with the more specific secondary
containment requirements under Subparts B and C. Therefore, the Agency
believes it is appropriate to have the owner or operator identify ‘the
mode of failure; the flow direction and quantity of the discharge; and
the secondary containment method and containment capacity’ for the
containers listed. The owner or operator may use either active or
passive approaches for complying with the secondary containment
requirements (for more information, see the SPCC Guidance for Regional
Inspectors).

Immediate NRC reporting. EPA will clarify that the NRC Notification
Procedures in Section III, Part 7 must be conducted immediately
following identification of a discharge to navigable waters or adjoining
shorelines.

Clarify references to secondary containment. EPA will revise the
discussion in Section III, Part 2 to include the word “secondary.”

Reports to the Regional Administrator. EPA will incorporate formatting
suggestions that make the template easier to use and technical
corrections, such as identifying acronyms when they are first used in
the document (for example, Regional Administrator (RA) in Section III,
Part 6); and moving the spill reporting requirements to the correct
section in the template (from Section III, Part 6 to Section III, Part
8.) The untitled, solitary box that contains informational elements that
are listed under §112.4(a) preceding §III.7 will be moved below
§III.8 “SPCC Spill Reporting Requirements.” (124)

Designation of tables and footnotes. EPA will incorporate formatting
suggestions that make the template easier to use, such as numbering
tables and using numbered or lettered superscripts.

Suggested Simplifications for Attachments.

EPA agrees with several of the commenters that recommended revisions to
the text proposed as Appendix G of 40 CFR part 112 to either simplify or
clarify use of the template.  EPA has made the following amendments:

Revise the Onshore Facility Checklist. EPA will amend the Onshore
Facility Checklist to indicate that not all provisions may be applicable
to all owners or operators, as appropriate, and will provide
instructions to indicate on the checklist when a provision is not
applicable.

Category I tanks. EPA agrees with the commenter and will modify the text
to ensure the Table in Attachment 3.2 of Appendix G is consistent with
the STI-SP001 requirements for Category I Tanks.

Visual inspection requirements. EPA will clarify the scope of the
inspection requirements for bulk storage containers in the Inspection
Log in Attachment 3 of Appendix G.

Discharge notification. EPA will clarify that the NRC Notification
Procedures in Attachment 4 must be conducted immediately following
identification of a discharge to navigable waters or adjoining
shorelines.

EPA considered, but did not agree with the following recommendations to
amend the template:

Refer to Plan template as Self-Certification Statement. EPA disagrees
with the commenters who suggested that EPA refer to the Plan template as
the self-certification statement. The self-certification statement is
one section of the template included in Appendix G and to refer to the
template as a self-certification statement may raise questions on
whether EPA is referring to a section of the Plan in Appendix G or the
full Plan. Therefore, EPA continues to refer to Appendix G as the Plan
template. Additionally, as discussed above, EPA disagrees with
commenters who maintain that a self-certification statement alone is
sufficient to replace a SPCC Plan. The SPCC Plan template is designed to
address streamlined SPCC requirements for Tier I qualified facilities
while reducing the paperwork burden for these facilities.

Discharge criteria. The current discharge history criterion is the same
as the criterion finalized for qualified facilities in the December 2006
rule amendments (71 FR 77266, December 26, 2006). EPA did not propose to
change the criteria for qualified facilities and since Tier I qualified
facilities are a subset of qualified facilities (now identified as
“Tier II qualified facilities”) then the discharge criterion also
applies to Tier I qualified facilities. Furthermore, the discharge
history criterion is similar to the reporting requirement in §112.4(a).
A discharge smaller than what must be reported to the EPA Regional
Administrator (RA) under this section may result from normal handling of
oil at the facility and may not indicate a recurring problem resulting
from a deficiency in the Plan or improper Plan implementation. In those
circumstances, the RA would not likely require the owner or operator to
amend the Plan and therefore, the facility owner/operator should be
eligible to self-certify the SPCC Plan as a qualified facility.

Secondary containment. EPA did not amend the table heading: “Secondary
containment capacity (gallons)” with the superscript that identifies
the secondary containment requirements for bulk storage containers. The
Agency believes that the table appropriately identifies the secondary
containment requirements for bulk storage containers and mobile/portable
containers. Additionally, the Agency will provide guidance that
describes the secondary containment requirements of the regulation in
more detail in the SPCC Guidance for Regional Inspectors.

Recertification of technical amendments. EPA disagrees with commenters
that requested that we delete the reference in the template that directs
the owner or operator to complete technical amendments in accordance
with the self-certification statement in Section I. of the template. The
Agency believes that this language serves as a reminder for the owner or
operator to self-certify technical amendments once completed.

Five-year reviews. EPA disagrees that it should delete the five-year
review requirements and has retained the discussion of five-year review
requirements in Section II and Attachment 1.1 of the template. Tier I
qualified facilities should remain subject to the same requirement to
periodically review and update the SPCC Plan to include more effective
prevention and control technology in order to reduce the likelihood of a
discharge as described in §112.1(b).

Additional footnotes. EPA disagrees with the commenter that suggested
the table in Section III Part 2 of the template be revised to add a
superscript that references the secondary containment requirements only
for bulk storage containers to the column heading “Secondary
containment capacity (gallons).” The table already references the
secondary containment requirements under the header for bulk storage
containers. The column for “Secondary containment capacity
(gallons)” applies to multiple types of equipment including piping and
oil-filled equipment and referencing only the requirements for bulk
storage containers in this column may raise questions on how to include
information in this column for other types of equipment.

Emphasize information in Table III-2 footnotes. The Agency did not agree
with the commenter who requested that EPA move the footnotes to the
discussion preceding the tables in the Appendix. The Plan template is
organized to be a model SPCC Plan for Tier I qualified facilities and is
not designed to be a training tool. Instead, the Agency will provide
guidance to assist in the completion of the SPCC Plan template in a
separate document

Simplify secondary containment information (Section III. Tables 1 & 2).
The Agency disagrees that additional simplification is appropriate for
these tables. The tables are designed to address the various oil storage
containers, equipment and oil-handling areas where secondary containment
is required. For Tier I qualified facilities with only one or two oil
storage containers, the tables should be easy to complete.

NRC reporting of discharges via stormwater runoff. The bullets in the
table cite the current regulatory requirements in §112.7(a)(4), which
also conforms with the type of information that is collected by the NRC.

Simplify Attachment 2. Oil Spill Contingency Plan and Checklist. EPA did
not propose to amend the contingency plan requirements under 40 CFR part
109 and the checklist is intended as a reminder for the owner or
operator to address these requirements when developing the contingency
plan for the facility (when applicable). This contingency plan checklist
is intended as a guide to assist the owner or operator of a Tier I
qualified facility to prepare a contingency plan in lieu of the general
secondary containment requirements for qualified oil-filled operational
equipment or as an alternative to sized secondary containment for
specific equipment at an oil production facility (such as flowlines).

VII.D 	Self-Certification and Plan Amendments

Issue: The Agency sought comments on the eight conditions that an owner
or operator of a qualified Tier I facility would be required to
self-certify, as well as the requirements for amending a Plan due to a
change in facility design, construction, operation, or maintenance that
materially affects its potential for a discharge as described in
§112.1(b).

COMMENTS

Support

No comments were submitted on this topic.

Oppose

Engineering judgment.  One commenter stated that the “regulation
should be rewritten to simplify, correct and clarify conditions for
users who may only need to address this requirement a limited number of
times.” (82) Additionally, the self-certification statement “should
not be modeled after what EPA desires to see a Licensed PE provide.”
The commenters noted that promoting or encouraging development of
qualified facility SPCC Plans by non-licensed engineers violates codes
in many states. (81, 82)

RESPONSE

Engineering judgment.  Although EPA agrees that the owner/operator of a
facility should not be making engineering determinations without proper
credentials, we believe that there are elements of those attestations
that are appropriate for an owner or operator, such as acknowledging
that they are familiar with the requirements of the regulation. EPA also
included additional attestations for the owner or operator of the
facility pertaining to the qualification criteria and management
approval of the SPCC Plan. While the owner or operator of a qualified
facility may choose to self-certify the SPCC Plan in lieu of a PE
certified Plan, he is still required to comply with all of the SPCC
requirements and to develop and implement a spill prevention program in
accordance with good engineering practices. The owner or operator may do
so by following guidance, industry standards, industry design
specifications or industry recommended or best management practices.
This is analogous to how a person with no accounting experience is
expected to comply with applicable state and federal tax laws. Many
people choose to have a Certified Public Accountant (CPA) prepare their
annual tax documents; however, the Internal Revenue Service (IRS) does
not require that a CPA conduct this activity. A person that chooses to
complete the tax forms on his own is not relieved from the liability to
do so in accordance with all federal and state requirements. That person
is expected to understand the tax laws and regulations and prepare the
documents following all applicable requirements. He may choose to use
the forms and guidance provided by the IRS or State agency, or use
software or other publicly available guidance to aid him in the correct
completion of the tax forms.

For SPCC, the Agency believes that an owner or operator who follows
guidance; standard design and operational protocols; industry standards
or recommended practices; or guidance developed by professional
associations is following “good engineering practices” to comply
with the SPCC rule requirements. Where operational changes at a facility
are necessary to comply with the rule requirements, the owner or
operator must follow all appropriate state and local requirements (such
as for permitting and construction) and, if necessary, obtain the
appropriate professional assistance. However, in the case of a qualified
facility, EPA believes that the development of the SPCC Plan itself is
not an engineering function and an owner or operator can prepare an SPCC
Plan that describes how the facility complies with the SPCC rule
requirements. For a qualified facility, the Agency believes it is
appropriate for the owner or operator to attest that the information in
the SPCC Plan is true and accurate following the self-certification
language in §112.6. EPA modeled the certification statements after the
PE certification provision in §112.3(d) with amendments to remove
language specific to engineering certification.

Finally, to the extent that a State has adopted a law, regulation, or
policy, such as one based on the National Council of Examiners for
Engineering and Surveying, that requires a PE to perform certain
functions, including certifying Plans, nothing in this action affects
whether a facility owner or operator would be required to utilize a PE
to meet the State or local requirements because this action does not
pre-empt any State or local requirements. Therefore, in States where the
engineer licensing boards have prohibited SPCC Plan self-certification,
the owner or operator may not be able to utilize the Tier I and Tier II
options to self-certify the SPCC Plan to comply with the SPCC
requirements.

VII.E 	Tier II Qualified Facility Requirements

Issue: The Agency proposes to designate qualified facilities that do not
meet the additional criterion for Tier I qualified facilities (i.e., no
individual aboveground oil storage container with a capacity greater
than 5,000 U.S. gallons) as Tier II qualified facilities. Although EPA
is proposing changes to the organization of the regulatory text in
§112.6 in order to accommodate the tiered approach, the requirements
for Tier II qualified facilities remain the same as they were finalized
in December 2006.

COMMENTS

Support

No comments were submitted on this topic.

Oppose

No comments were submitted on this topic.

Alternative Approaches Suggested

Develop a Tier II template.  Two commenters expressed support for Tier
II facility use of a template. (55, 82)

RESPONSE

Alternative Approaches Suggested

Extend template to Tier II.  EPA did not propose a template for Tier II
qualified facilities. The requirements for Tier II qualified facilities
remain the same as they were when they were promulgated in December
2006.

VII.F	Alternative Options

Issue: Under this option, EPA would exempt a certain subset of qualified
facilities from the SPCC requirements altogether, based on a lower
facility storage capacity threshold (e.g., 5,000 U.S. gallons).

COMMENTS

Support

No comments specifically addressed this issue.

Oppose

No comments specifically addressed this issue.

VIII.	General Secondary Containment

VIII.A	Revisions to the General Secondary Containment Requirement

Issue: EPA proposed to amend the general secondary containment
requirement at §112.7(c) to make clear that the scope of secondary
containment takes into consideration the typical failure mode, and most
likely quantity of oil that would be discharged, consistent with current
EPA guidance. Moreover, this proposed amendment would also provide
additional examples of prevention systems for onshore facilities found
at §112.7(c)(1). EPA requested comments on the appropriateness of
amending the general secondary containment provision to expand the list
of example secondary containment methods found in §112.7(c)(1).

COMMENTS

Support

Generally Support. Many commenters expressed general support for the
proposed amendments.

Oppose

Inconsistent with the statute. A commenter suggested that allowing
secondary containment for most likely quantity of oil discharged instead
of worst case discharge is inconsistent with 33 U.S.C. 1321(j)(5)(D).
(127)

Calculations for removal scenarios and flexibility. Two commenters
challenged as impractical the need to include calculations for every
potential release scenario. (111, 113)  The commenters argued that this
implied additional requirement is burdensome, will increase the cost of
plan preparation and is not practical for larger facilities with many
potential scenarios. The commenters added that the  determination of
adequate secondary containment is performance based and should be
determined by the P.E. EPA needs to clarify that the actual calculations
are not required to be included in the SPCC Plan. (111, 113)  A
commenter suggests that EPA provide latitude to the certifying PE in
developing the different release scenarios and secondary containment
requirements that are appropriate for the facility. (111) Another
commenter believes that the Plan should only address the worst case
scenario of the most likely discharges. (113)

Alternative Approaches Suggested

Allow common collection area. A commenter requested that EPA allow the
use of a common collection area or containment area rather than
individual containment along gathering lines and when there are several
tanks located in close proximity to each other. (129)

Clarify requirements for buried piping. EPA should clarify in the
regulations (not just the guidance) whether general secondary
containment is required for buried piping. (25)

Suggested language change. Two commenters suggested changes to the
language in proposed text at 40 CFR 112.7(c). The commenters edited the
text to replace the word “tank” in the following sentence with
“piping or oil-filled equipment.” “The entire containment system,
including walls and floor, must be capable of containing oil and must be
constructed so that any discharge from a primary containment system,
such as a piping or oil-filled equipment, will not escape the
containment system before cleanup..." (111, 113)

Specific examples. Commenters requested that EPA clarify that the
proposed list of secondary containment methods is not all-inclusive.
(111, 113) Another commenter requested additional examples on the
elements that can comprise an acceptable [secondary containment] system;
for example, the circumstances where surface impoundments, on their own,
or in connection with other elements such as oil/water separators or
certain aspects of water treatment would constitute appropriate
secondary containment. (84)  Another commenter recommended that EPA add
wording to the list of secondary containment measures such as this
language from the proposal: “other containment measures may be used,
consistent with good engineering practice.”  (113)

RESPONSE

Generally Support. EPA agrees with commenters who supported the proposed
amendments. EPA is amending the general secondary containment
requirement at §112.7(c) in three ways: (1) by adding text regarding
the method, design and capacity of secondary containment; (2) by
specifically allowing both active and passive measures of secondary
containment; and (3) by including additional examples of prevention
systems.  Section M of this notice describes an additional modification
to the provision to address flowlines and intra-facility gathering lines
at an oil production facility.

Oppose

Inconsistent with the statute. EPA does not agree with the commenter’s
suggestion that this amendment is inconsistent with 33 U.S.C.
§1321(j)(5)(D).  The Agency’s authority to promulgate the SPCC rule
is found in 33 U.S.C. §1321(j)(1)(C) and requires the Agency to
promulgate regulations establishing procedures, methods, equipment and
other requirements for equipment to prevent discharges of oil and to
contain those discharges. The statutory provision gives the Agency broad
discretion to establish the requirements under the SPCC rule. Nowhere in
this statutory provision is a requirement that the SPCC regulations
address worst case discharges. Section 1321(j)(5)(D), however, directs
the Agency to issue regulations to require owners or operators to
prepare and submit plans to respond to worst case discharges. Consistent
with this statutory provision, EPA has promulgated facility response
plan regulations in 40 CFR part 112 Subpart D.  Therefore, we do not
agree with the commenter who suggested that this amendment is
inconsistent with 33 U.S.C. 1321(j)(5)(D).

Calculations for removal scenarios and flexibility. EPA agrees with
commenters that including the calculations in the SPCC Plan is not
required.  However, in order to determine that the facility has provided
appropriate secondary containment that complies with §112.7(c), an EPA
inspector may review the supporting documentation in the SPCC Plan (see
the SPCC Guidance for Regional Inspectors, Chapter 4, Version 1.0,
November 28, 2005). If calculations are not included with the SPCC Plan,
and the inspector suspects the general secondary containment is
inadequate, the inspector may request supporting documentation from the
owner or operator. Industry guidance recommends that facility owners or
operators include any secondary containment capacity calculations and/or
design standards with the Plan. API Bulletin D16, “Suggested Procedure
for Development of Spill Prevention Control and Countermeasure Plans,”
contains example calculations to which inspectors may refer (see Exhibit
E of “Suggested Procedure for Development of Spill Prevention Control
and Countermeasure Plans,” API Bulletin D16. Third Edition, December
2002). Calculations may be provided as part of the documentation to
support the adequacy of containment measures employed at the facility,
though, they are not required. Nevertheless, the Plan preparer must
include enough detail in the SPCC Plan to describe the efficacy of the
measures used to comply with the general secondary containment
requirements in §112.7(c).

Commenters suggested that EPA should require that general secondary
containment address the worst case of the most likely discharge. EPA
disagrees that planning for a worst case discharge in all cases is
necessary. There are various provisions in the rule that specify design
requirements for secondary containment for different types of equipment.
The general secondary containment provision does not include design
specifications except that the general secondary containment must be
appropriate to prevent a discharge as described in §112.1(b). The owner
or operator can determine what capacity of secondary containment is
needed, and design the containment method accordingly based on
site-specific conditions to prevent discharges to navigable waters or
adjoining shorelines. In contrast, the rule does include more specific
secondary containment requirements for loading/unloading racks and bulk
storage containers  (e.g., §§ 112.7(h)(1), 112.8(c)(2), 112.8(c)(11),
112.9(c)(2), 112.12(c)(2), 112.12(c)(11)) which address minimum  design,
sizing and freeboard capacity specifications to account for a major
container failure.

Alternative Approaches Suggested

Allow common collection area. EPA agrees with the commenter about the
use of common containment systems. The Agency wants to make clear that
it is not necessary to provide separate containment systems for each
individual container or equipment. Instead, the Plan preparer may choose
to design facility drainage to provide a common collection area for
multiple containers, piping or oil-filled equipment located at the
facility. In order to comply with the general secondary containment
requirements, the owner or operator must first identify the typical
failure mode and quantity of oil that could be discharged. Based on
site-specific conditions, he can determine what capacity is needed and
design the secondary containment system accordingly.

Clarify requirements for buried piping.  EPA disagrees that a regulatory
change is necessary to address general secondary containment
requirements for buried piping. The general secondary containment
provision in §112.7(c) is intended to address the potential for oil
discharges from all regulated parts of a facility. Containment method,
design, and capacity are determined by good engineering practice to
contain an oil discharge until cleanup occurs. This determination should
consider all areas of the facility with a potential to discharge oil,
including, but not limited to, piping (both aboveground and buried),
transfer areas and oil-filled operational equipment.

Suggested language change. The Agency does not agree that it is
necessary to replace the word “tank” with “piping or oil-filled
equipment” in §112.7(c), as suggested. Tanks, piping and oil-filled
equipment are all examples of primary containment systems and the Agency
does not believe it is necessary to replace one example with another in
the rule language. However, the word “secondary” is being added for
clarity and addresses the point raised by the commenter.

Specific examples. EPA agrees with the commenters and is amending the
language in §112.7(c)(1) to include additional examples of secondary
containment methods, as proposed. Section 112.7(c) states that “at a
minimum, you must use one of the following prevention systems or its
equivalent....” EPA clarified in Chapter 4 of the SPCC Guidance for
Regional Inspectors (Version 1.0, November 28, 2005) that the list of
secondary containment methods in §112.7(c) are examples only and not
meant to be all-inclusive. Other containment methods may be used,
consistent with good engineering practice. For example, a facility could
use an oil/water separator, combined with a drainage system, to collect
and retain discharges of oil within the facility. Surface impoundments,
oil/water separators, and wastewater treatment systems that are designed
and maintained in a way to meet the requirements of §112.7(c) to
prevent a discharge as described in §112.1(b) would also serve as
equivalent prevention systems. Additionally, certification of the SPCC
Plan verifies that secondary containment methods are appropriate for the
facility and that they follow good engineering practice. EPA disagrees
with the commenters who recommended that EPA add wording to the list of
secondary containment measures stating “other containment measures may
be used, consistent with good engineering practice.” The addition of
this language is redundant, because §112.7 requires that the SPCC Plan
be developed in accordance with good engineering practices.
Additionally, EPA has clarified in Chapter 4 of the SPCC Guidance for
Regional Inspectors (Version 1.0, November 28, 2005) that the list of
secondary containment methods in §112.7(c) are examples only and not
meant to be all-inclusive.

VIII.B	General Secondary Containment for Non-Transportation Related Tank
Trucks

Issue: EPA requested comment on whether the regulatory relief provided
to mobile refuelers in 2006 (i.e., an exemption from the sized secondary
containment requirements) should be extended to
non-transportation-related tank trucks at a facility subject to the SPCC
rule.

COMMENTS

Support

Generally Support. Many commenters expressed general support for
extension of regulatory relief to non-transportation-related tank
trucks.

Oppose

Oppose regulatory relief to non-transportation-related tank trucks. A
commenter believes that non-transportation tank trucks should not be
exempted from any SPCC requirements because (1) double-lined tanks have
been readily available for many years making compliance technically
feasible; (2) the proposal effectively punishes the facilities that
incurred extra costs conforming with the current rule (by purchasing
double-lined tanks), and rewards those who chose not to comply with the
requirements; and (3) tank trucks are high-risk oil containers often
employed at sites  where security is minimal or non-existent, where the
tank/tank truck is exposed to severe service conditions (such as
impacts), and where frequent changes in operating/maintenance personnel
occur, elevating the risk of accidental tank failure and oil discharges.
 The commenter believes that relaxing the SPCC requirements for these
tanks is counterprotective to the environment. (132)

Other Suggested Options

 Expand exemption. A commenter suggested that EPA expand the exemption
to include small truck mounted refueling and oil tanks, up to 220
gallons, that are used to transport oils and fuels to various remote
facilities and construction sites because the small size of the bulk
storage tanks limits the amount of fuel or oil that could be
discharged.” (154)  One commenter suggested exempting all trucks, or,
at a minimum, providing the same requirements for the mobile refueling
tank trucks at drilling and workover facilities and oil production
facilities as the mobile refuelers in other industry sectors. (85)  One
commenter urged EPA “to expand the exemption from sized secondary
containment to cover vehicles transporting all types of oils for use in
oil-filled operational equipment.” (121)

Exemptions for other vehicles. A commenter suggested that EPA expand
exemption to include non-transportation related tank cars that may be
staged on leased or privately owned rail tracks.  (111)

Mobile/portable containers.  A commenter suggested expanding the
exemption to cover mobile/portable containers used for maintenance