RESPONSE TO COMMENTS DOCUMENT FOR THE 1997 SPILL PREVENTION, CONTROL, AND COUNTERMEASURE PLAN RULEMAKING Oil Program Center Office of Emergency and Remedial Response U. S. Environmental Protection Agency 1 Table of Contents Response to Comments Document for the 1997 Proposed Spill Prevention, Control, and Countermeasure Plan Requirements Section Page Introduction .......................................................... 2 1. Applicability  Oil Used Operationally ................................ 4 2. New Comments for Old Proposals................................... 8 3. Information forFutureRulemaking ................................. 13 4. Threshold Issues  §112.1( d)( 2)( i) and (ii) ............................ 15 5. §§ 112.2 and 112.7 Introduction  Alternative Plan Formats .............. 25 6. Information Submitted After Certain Discharges  §112.4( a) .............. 34 7. Five Year Plan Review and Certification  §112.5( b) ................... 40 8. Use of Business Records  §§ 112.7( e), 112.8( c)( 3)( iv), and 112.9( b)( 1) .... 46 9. Capacity of Facilities Storing Process Water/ Wastewater for Response Plan Purposes  proposed §112.20( f)( 4) ............................ 54 10. Facility Response Plan Format  §112.20( h) .......................... 55 11. Supporting Analyses ............................................ 57 12. Miscellaneous Comments ........................................ 61 2 INTRODUCTION Purpose of this Document The purpose of this document is to respond to comments received on the 1997 proposed rule (62 FR 63812, December 2, 1997) to revise the Oil Pollution Prevention and Response rule, also known as the Spill Prevention, Control, and Countermeasure (SPCC) rule (40 CFR part 112), promulgated under the Clean Water Act. The proposed revisions are in addition to revisions previously proposed to part 112 in 1991 and 1993. We proposed the 1997 revisions primarily to reduce the information collection burden of the SPCC Plan requirements.

Background of this Rulemaking Part 112 of 40 CFR outlines requirements for both prevention of and response to oil spills. The prevention aspect of the rule requires the preparation and implementation of SPCC plans. This rulemaking affects mainly SPCC requirements. Response requirements are largely unchanged at this time, except for a proposal that clarifies acceptability of alternative response plan formats. The SPCC requirements were originally promulgated on December 11, 1973 (38 FR 34164) under the authority of section 311( j)( 1)( C) of the Clean Water Act (CWA or the Act). Regulated facilities are also limited to those that, because of their location could reasonably be expected to discharge oil in quantities that may be harmful into the navigable waters of the United States or adjoining shorelines, or that affect certain natural resources.

The SPCC requirements have been amended a number of times. On October 22, 1991, the Agency proposed certain changes to 40 CFR 112.7. The October 1991 proposed revisions involved changes in the applicability of the regulation and the required procedures for the completion of SPCC plans, as well as the addition of a facility provision. The proposed rule also reflected changes in the jurisdiction of section 311 of the Act made by amendments to the Act in 1977 and 1978. Those proposed revisions, as modified, are finalized in this rule.

On February 17, 1993, the Agency again proposed clarifications of and technical changes to the SPCC rule, and facility response requirements to implement OPA. 58 FR 8824. The proposed changes to the SPCC prevention requirements included clarifications of certain requirements, contingency plans for facilities without secondary containment, prevention training, and methods of determining whether a tank would be subject to brittle fracture. The facility response plan requirements of the 1993 proposal were promulgated on July 1, 1994 (59 FR 47384) and codified at 40 CFR 112.20 21. The prevention requirements, as modified, are finalized in this rule. 3 In 1996, we concluded a survey of SPCC facilities. We used the results of that survey to develop the December 2, 1997 proposed rule (62 FR 63812). The survey results are part of the administrative record for this rulemaking.

The purpose of the 1997 proposal was to reduce the information collection burden now imposed by the prevention requirements in the SPCC rule without creating an adverse impact on public health or the environment. We also proposed changes in information collection requirements for facility response plans, but withdraw them in this rulemaking. The 1997 SPCC proposals, as modified, are finalized in this rule.

Organization of this Comment Response Document To develop this document, we first carefully reviewed the letters received by the public docket and identified relevant issues raised by the commenters based on the content of the proposed rule. We then grouped the issues according to categories and subcategories. We address the major points made in the comments and respond to them. We include several comment excerpts and responses pertaining to each issue. In most cases, we do not include comment excerpts that simply state support for our proposed revisions. Instead, we list the letter number of each general supporting comment in the Comments section for each category. The letter numbers were assigned to each letter in accordance with when the letter was received by the public docket.

The comment excerpts that are included in this document are taken verbatim from the comment letters received by the public docket. In some cases, multiple commenters submitted the same comment. We indicate this by including the multiple commenter numbers with the excerpt. We group the comments that make similar statements and provide one response for the group. We respond to the remaining comments individually. 4 1. Applicability  Oil Used Operationally Background: In the 1991 preamble, we addressed the fact that certain facilities may have equipment, such as electrical transformers, that contain significant quantities of oil for operational purposes rather than for storage. We stated that such oil filled equipment is not be subject to the bulk storage container provisions in proposed §112.8( c) and §112.9( c) because the primary purpose of this equipment is not the storage of oil in bulk. However, we also stated that oil filled equipment must meet other applicable SPCC requirements, including the general requirements of §112.7. We also indicated that the oil storage capacity of the equipment must be included in calculating the total oil storage capacity of the facility to determine whether the facility is subject to the SPCC rule. In 1991, we also asked commenters to identify possible operational uses of oil, other than electrical transformers, that may not currently use secondary containment as a common industry practice, and that should not be subject to bulk storage provisions.

Comments: Integrity testing. It is inappropriate to require facilities to integrity test electrical devices. (18, 65) Because "... electrical devices are drained, opened (and in some cases, physically entered) and inspected during scheduled preventative maintenance. The purpose of this inspection is to ensure that the internal electrical components deliver the required efficiencies in voltage/ amperage conversion or circuit protection. When the dielectric fluid is replaced in the device, it is processed using a vacuum and filter press procedure to ensure that all entrained moisture is removed from the oil. This enhances the dielectric properties of the oil and removes any traces of water that could become reactive when the device is energized. An additional benefit of this process is to virtually eliminate the potential for moisture induced corrosion of the interior of the device. Oil samples are collected from substation equipment at specified time intervals and evaluated for moisture and dissolved gas content." (18) "Integrity testing for electrical equipment should not be required because there is no established integrity test that is appropriate for such equipment. Moreover, performing an integrity test would require taking the equipment out of service, which could create a disruption in the supply of electricity. In addition, integrity testing of electrical equipment serves no useful purpose. Unlike tanks, where regular filling and emptying can mask the presence of a leak, dielectric fluid is rarely added to electrical equipment. Therefore, any leak would soon manifest itself as a drop in the level of dielectric fluid in the unit. Finally, integrity testing would serve little purpose because the use of electrical equipment is equivalent to continuous integrity testing; a leak will lead to equipment failure. Because any significant loss of fluid interrupts the flow of electricity, any significant fluid loss is detected quickly." (65)

Response plans  electrical equipment. "There is also no reason to apply all of the requirements of an OPA response plan to electrical equipment when secondary containment is impractical for Facilities subject to the SPCC program. The OPA 5 regulations are designed to apply to Facilities containing millions of gallons of oil, and it makes little sense to apply these requirements to facilities orders of magnitude smaller. Preparation of an OPA plan is a detailed and costly endeavor requiring the determination of a worst case discharge, a hazard and vulnerability analysis, tiered planning scenarios, and compliance with complicated requirements regarding the location and testing of response equipment, response times and personnel qualification and training. Last, the OPA rules require that covered facilities must have response equipment under contract for a worst case discharge. Because the number of certified response organizations is small, having one on retainer can be extremely costly. These measures are simply not appropriate for electrical distribution systems, which do not pose the same risk as oil transfer and storage facilities and which are already being adequately addressed by the utilities' current response plans." (65)

Risk based approach to applicability. "NMPC currently addresses such facilities on a risk prioritized basis such that those deemed to have a high risk of discharging oil to navigable waters have a specific SPCC plan, but those deemed to have medium or low risk are addressed more generically. The majority of substations are considered to be of medium to low risk. " (19) "The equipment containing significant oil can be inspected for its adjacency to traffic. If the risk of vehicular impact is high, traffic barriers can be constructed to prevent collisions. This process will vastly reduce the most common cause of a release. During the above inspections, a determination can be made to decide if some equipment should be protected with secondary containment. Also during the inspections, the equipment can be checked for any areas of concern. Should a problem be identified, measures can be taken to mitigate the problem. A general spill prevention response procedure can be written for distribution equipment, and corresponding training be given, so employees can take measures to prevent spills and can respond appropriately to a spill. (Note: SPCC training is already given to these employees for substation equipment.) Also note that distribution equipment is currently labeled with an emergency call number should a passerby note anything peculiar." (32)

Secondary containment  impracticability. "( T) he demonstration of this impracticability is primarily based upon the fire pool hazard that would be created by containing oil at the base of an electrical device, and the electrical hazard created by pooling rainwater around an energized device. However, another consideration is the access restrictions to essential equipment that would be imposed by the installation of spill containment structures. The overhead work clearances at the majority of substations are severely restricted due to the low electrical busses that conduct current to and from the electrical devices. Therefore, the larger substation equipment is mounted on sledge runners to enable the device to be skidded under the overhead bus if necessary. Installation of a containment basin around a device would require that the device be lifted clear of the basin wall prior to removal or installation. This would pose an electrical safety hazard to the individual operating the crane, as well other individuals in the vicinity." We 6 should allow facilities to substitute absorbent in lieu of secondary containment or spill diversionary structures. (18) "Because electrical equipment is electrified, water must be able to drain away from the equipment to avoid shock and fire hazards. This makes secondary containment impracticable at many electrical equipment locations. " (65)

State rules. "AST's containing mineral oil are exempt under Colorado AST regulations." (32) "The State (Michigan) recognizes the distinction between the use of operating fluid in electrical equipment and the storage of oil in tanks or other containers. EPA should likewise exclude this equipment from inclusion into the SPCC regulations based on the industry  s excellent safety record and the fact that the use of dielectric fluid in electrical equipment does not constitute "storage" or "consumption" of oil." (76)

Use of oil. We lack jurisdiction to regulate the operational use of oil, especially in electrical transformers, substations, and other equipment. The regulation is meant to apply only to facilities that have the potential to cause catastrophic harm to the environment in the event of an oil spill, which would not include any spill event resulting from oil used in electrical equipment. (18,19, 20, 31, 32, 35, 57, 60, 65, 69, 70, 76, L1)

Response: Integrity testing. We have distinguished the bulk storage of oil from the operational use of oil. We define "bulk storage container" in the final rule to mean any container used to store oil. The storage of oil may be prior to use, while being used, or prior to further distribution in commerce. For clarity, we have specifically excluded oilfilled electrical, operating, or manufacturing equipment from the definition. In both §§ 112.7( d) and 112.8( c)( 6), integrity testing requirements apply only to bulk storage containers. Therefore, oil filled electrical, operating, or manufacturing equipment is not subject to the integrity testing requirement.

Response plans  electrical equipment. We agree with the commenter that most SPCC facilities should not have to prepare response plans nor should electrical facilities be subject to the requirements for bulk storage facilities. Section 112.7( d) of the final rule does not require preparation of a facility response plan when a facility lacks secondary containment. A contingency plan following the provisions of 40 CFR part 109 and compliance with the other provisions of §112.7( d) is sufficient.

Risk based approach to applicability. A facility with oil filled equipment might reasonably be expected to discharge oil as described in §112.1( b). Therefore, the prevention of discharges from such facility falls within the scope of the statute. The discharge prevention measures employed at such a facility will be dictated by good engineering practice.

Secondary containment  impracticability. Facilities that use oil operationally include electrical substations, facilities containing electrical transformers, and certain hydraulic 7 or manufacturing equipment. The requirements for bulk storage containers may not always apply to these facilities since the primary purpose of this equipment is not the storage of oil in bulk. Facilities with equipment containing oil for ancillary purposes are not required to provide the secondary containment required for bulk storage facilities (§ 112.8( c)) nor for onshore production facilities (§ 112.9( c)) for this equipment, nor implement the other provisions of §112.8( c) or §112.9( c). Oil filled equipment must meet other SPCC requirements, for example, the general requirements and the requirements of §112.7, including §112.7( c), to provide appropriate containment and/ or diversionary structures to prevent discharged oil from reaching a navigable watercourse. The general requirement for secondary containment, which can be provided by various means including drainage systems, spill diversion ponds, etc., will provide for safety and also the needs of section 311( j)( 1)( C) of the CWA.

State rules. State laws may have different applicability standards than the SPCC rule. Dielectric fluid (along with any other oil based fluid found in electrical equipment) is regulated under the SPCC program based on the SPCC definition of oil, which includes oil of any kind or in any form. Our rule includes the "use" and "consumption" of oil as a basis for applicability.

Use of oil. We disagree that operational equipment is not subject to the SPCC rule. We have amended §112.1( b) to clarify that using oil, for example operationally, may subject a facility to SPCC jurisdiction as long as the other applicability criteria apply, for example, oil storage capacity, or location. Such a facility might reasonably be expected to discharge oil as described in §112.1( b). Therefore, the prevention of discharges from such facility falls within the scope of the statute.

In addition, a facility may deviate from any inapplicable or inappropriate SPCC requirements, or from most applicable requirements, if the owner or operator explains his reasons for nonconformance and provides equivalent environmental protection by some other means. See §112.7( a)( 2). See also §112.7( d). 8 2. New Comments for Old Proposals Background: In the 1997 proposal, we stated that we would finalize the 1991 and 1993 proposals without seeking additional comments on those proposals.

Comments: Support for additional comments or reproposal. (6, 7, 11, 17, 24, 26, 37, 41, 49, 50, 52, 58, 61, 70, 74, 77).

Burden. The 1991 proposal "... would increase the burdens on small tank batteries and other facilities  arguably, to a greater degree than the current proposal reduces the burdens. At this point, the Agency might consider republishing the whole spill prevention rule so that the public can view the proposed changes in a comprehensive manner." (64)

Industry standards. "...( M) uch has changed since the 1991 proposal was issued. Many API standards and recommended practices applicable to aboveground storage tank operation have been revised since that time. These revisions have further strengthen the industry's goal of environmental protection." (37) "Standards, specifications, and recommended practices for aboveground tank operations, terminals, and exploration and production tank operations have been revised and updated by the American Petroleum Institute. Because of the time that has elapsed, the changes in operational procedures of the oil and gas industry which have improved the degree of environmental protection, and the new information EPA obtained from their tank survey, RMOGA urges EPA to re publish the spill prevention rule 40 CFR 112 in its entirety incorporating all proposed changes as a draft for comment." (49) We should repropose the changes because of the following industry standards that have been developed since the 1991 proposal: Std 620, Design and Construction of Large, Welded, Low Pressure Storage Tanks, 9th, ed, 1996; Std 650, Welded Steel Tanks for Oil Storage, 9th ed, 1993; Std 653, Tank Inspection, Repair, Alteration, and Reconstruction, 2nd ed, 1995; Std 2000, Venting Atmospheric and Low Pressure Storage Tanks; Nonrefrigerated and Refrigerated, 4th ed, 1992; Std 2015, Safe Entry and Cleaning of Petroleum Storage Tanks, 5th ed, 1994; and, Recommended Practice 2350, Overfill Protection for Petroleum Storage Tanks, 2nd ed, 1996; In addition, API Standard 2610, Design, Construction, Operation, Maintenance and Inspection of Terminal and Tank Facilities, first published in 1994, provides a comprehensive guide to the best industry practices for terminal design, construction, inspection, maintenance, repair, and environmental protection. Similarly, specifications and recommended practices for exploration and production tanks have been revised during the six year period, including: Spec. 12B, Specification for Bolted Tanks for Storage of Production Liquids, 14th ed, 1995; Spec. 12D, Specification for Field Welded Tanks for Storage of Production Liquids, 10th ed, 1994; Spec. 9 12F, Specification for Shop Welded Tanks for Storage of Production Liquids, 11th ed, 1994; Spec. 12P, Specification for Fiberglass Reinforced Plastic Tanks, 2nd ed, 1995; and, Recommended Practice 12R1, Recommended Practice for Setting, Maintenance, Inspection, Operation and Repair of Tanks in Production Service, 5th ed, 1997." (58)

More recent events. Hopes that EPA "... considers the oil and gas industry and standard industry operating practices have changed significantly since 1913 and that a prescriptive regulation is not necessary. (6)

1995 Survey, Liner Study, Cooperative Program. Commenters felt that additional comments should be allowed on the 1991 and 1993 proposals before finalization because of changes and developments in our policy and information since the time of proposal. (17, 24, 26, 41, 50, 58, 61, 77) These events include "... over six years of additional [EPA] experience with the basic SPCC program, new studies (e. g. EPA's 1996 "Liner Study" report to Congress), revisions and additions to applicable industry initiatives and standards (e. g. API's Standard 653 and Recommended Practice 2350), and significant maturing of the Facility Response Plan Program." (24, 50) "The 1997 proposed rules indicate that significant information was obtained from a recently completed industry SPCC survey. This information should be presented to industry if it includes justification for the previously proposed rule revisions." (77)

"The EPA should republish those provisions from the 1991 proposal it plans to adopt along with its conclusions from the 1995 survey and allow the affected industry sectors to evaluate those conclusions. For example, the survey results appear to suggest that the current SPCC plan program is effective in reducing spills, spill volumes, and offsite migration of oil. MEDC doubts that such results support adding high cost burdens to lowrisk operations. MEDC is also concerned that the survey understates the number of small exploration and production facilities, a factor which could distort economic analysis of the effect of a rule." (17) "... EPA owes the parties potentially affected by adoption of the 1991 proposals the chance to review the survey results along with any analysis EPA has performed of those results to justify rules from the 1991 proposal." This is important because the current proposal provides regulatory relief to large facilities and not the more numerous smaller facilities, which the survey may have mischaracterized. (26)

Personnel changes. Objects to our plan to finalize the 1991 and 1993 SPCC plan rule proposals without additional comment because of industry personnel changes and new personnel, new companies, changes in spill prevention 10 standards, equipment, practices and procedures, and the need to plan, budget and arrange for the financing of compliance. Identifies two significant developments since the 1991 and 1993 proposals:

"A. New companies have entered the industry since 1993 and 1991. Since a significant number of facilities affected by these rules may not have been in existence at the time they were released, they should not be subjected to the imposition of costly new requirements without the opportunity for notice and comment.

B. There have been significant personnel changes in industry positions responsible for facility spill prevention operations. Industry representatives began working with EPA on the proposed SPCC Plan revised regulations in 1987. Since that time, most of the industry personnel involved in that effort, or in reviewing drafts for their companies, have retired or moved to other positions. There have been tremendous reductions in company personnel throughout the industry. (Note: Since 1984, more than 475,000 persons have left their employment in the petroleum industry.)"

New personnel at petroleum facilities need the opportunity to review and understand the proposed 1991 and 1993 regulations and evaluate their impact, financial and otherwise, on the companies they work for, on the operations for which they have responsibility, and on the budgets they must obtain to comply. (52)

Regulatory changes. We should solicit additional comments before finalizing the proposals because of changes in regulatory and statutory issues since 1991 and 1993. (17, 26, 41, 50, 58, 61, 77)

FRP rule. Some commenters believed that the implementation of the Facility Response Plan (FRP) rule alone requires us to solicit additional comments concerning the SPCC proposals. "The current regulatory reduction proposals acknowledge the relationship between SPCC plans and FRPs. MEDC believes that in writing and implementing FRPs many large, high risk facilities have made improvements in their spill prevention and control plans. The FRP program has changed materially the oil spill risk posed by oil storage tanks and its impact should be taken into account." (17) We should acknowledge developments in compliance provisions since 1991 before promulgating the new SPCC rules. (26, 77) "Since 1991 EPA has proposed and adopted rules identifying higher risk facilities and requiring them to develop and implement FRPs under the Oil Pollution Act of 1990. The current proposal recognizes the close 11 relationship between SPCC plans and FRPs by allowing facility operators to use one plan for both, either an integrated contingency plan or an equivalent state plan. IPAA believes that in writing and implementing FRPs, many operators of large, high risk facilities have had to implement improvements in spill prevention and control. Those facility changes require EPA to reconsider the basis for its 1991 SPCC plan proposals because the universe of regulated facilities has changed significantly." (26) Because of the Oil Pollution Act amendments and significant maturing of the Facility Response Plan program, review and comment are needed before the promulgation of the 1991 and 1993 proposals. (41, 50, 58) Requirements from the FRP program and planned regulations under the SPCC proposal are redundant, may be unnecessary and need further evaluation. (41, 58) "The current proposal, allowing integrated contingency plans (ICPs) or other state plans, acknowledges the close relationship between the SPCC plan and FRP programs. Even though one program addresses spill prevention and the other addresses spill response, the facility analysis for the FRP also serves the needs of spill prevention by identifying risks. We believe that the process of implementing FRPs at the highest risk facilities has, as part of the process, also helped improve spill prevention efforts." (58)

Response plan requirement. Promulgation of the 1991 and 1993 proposals may require small facilities to adopt OPA response plans. "Before imposing such requirements on the industry, it would be appropriate to determine what number of releases to navigable water take place as a result of a lack of response planning at small, non OPA facilities that may have a SPCC plan with secondary containment in place but not the appropriate spill response equipment or trained personnel." (6)

Time lapse. Other Agency events necessitate additional public comments. (41, 58, 61) "The significant time lapse since (the 1991 and 1993) proposals  along with amendments to the Oil Pollution Act and EPA's recommendation to Congress in 1996 to establish the Oil Cooperative Program  strongly suggested that EPA had abandoned its intent to finalize the 1991 and 1993 proposals. We believe that actions (EPA's intent to establish an Oil Cooperative Program; the data collected by EPA's facility survey; changes made to regulatory requirements; and revisions to industry standards) taken since these proposals mandate that EPA review the need for additional changes to the program. We strongly recommend that EPA not finalize the earlier proposals without first allowing further review and comment, especially since many of the proposed changes may no longer be necessary." (58) "...( T) he passage of time and intervening events, in particular, the President's directive on burden reduction and the Agency's own 1995 SPCC Survey." (70) 12 Response: Additional comments or reproposal. It is not necessary to repropose the 1991 and 1993 proposals because of mere passage of time. We received numerous comments on every side of most issues. In developing this final rule, we have considered changes that have taken place in the oil industry, industry standards, and regulations that may affect the SPCC rule. We have also considered changes in the various industries which comprise the universe of SPCC facilities which have occurred since our original proposals. We encourage the use of industry standards to implement the rule, without incorporating any particular standard into the rule, thereby averting possible obsolescence of those standards. We used the results of our 1995 SPCC facility survey to develop our 1997 proposed rule. These results are also part of the administrative record for this rulemaking. We have also considered and responded to all of the comments received in 1991 and 1993 in their respective Comment Response Documents or in the preamble to today's final rule.

The Oil Cooperative Program does not affect the substantive provisions of the rule, but merely encourages facilities to go beyond the rule in effecting environmental enhancements.

FRP rule. Only a small subset of facilities regulated under the SPCC program, i. e., approximately 6, 000 facilities, are also subject to FRP requirements. Recognizing the impact of FRPs, we have exempted those facilities from some of the requirements of the SPCC rule, for example, information on emergency procedures (§ 112.7( a)( 4) and (5)).

We also recognize the impact of other rules, for example State rules, the Federal rules governing solid waste (i. e., the RCRA rules), and rules governing permitted discharges into waters of the United States (National Pollutant Discharge Elimination System or NPDES). We permit facilities to use as SPCC Plans, in whole or in part, plans that were drafted to satisfy the requirements of these and other authorities. Those plans must meet all Federal requirements or be supplemented so that they do, and crossreferenced to the applicable Federal requirement. As a result, we do not believe it is necessary to repropose the 1991 and 1993 SPCC proposals for additional public comment regarding recent regulatory issues.

Personnel changes. In developing this final rule, as noted above, we have considered changes that have taken place in the oil industry, industry standards, and regulations that may affect the SPCC rule. For the past 26 years, owners and operators of regulated facilities have been responsible for training their personnel in applicable regulations, such as 40 CFR part 112. Such responsibility is in effect now, and will continue under the revised rule. New companies and new personnel of those companies are on notice as to applicable rules and proposals. They have also had the 13 opportunity to comment on the 1997 proposal. Furthermore, we have considered cost implications for all three proposals which we are finalizing today.

Response plan requirements. We have no plans to require SPCC facilities for which secondary containment is not practicable to develop response plans. Therefore we have withdrawn §112.7( d) as proposed in 1993. Only a contingency plan following the provisions of 40 CFR part 109 and compliance with other provisions of §112.7( d) is necessary when secondary containment is impracticable. Only onshore facilities that meet the criteria of substantial harm and/ or significant and substantial harm facilities need to comply with the FRP requirements in 40 CFR 112.20 21.

3. Information for Future Rulemaking Background: In our 1997 proposal, we requested comments on new standards, technologies, or approaches that have been developed since the enactment of OPA which would reduce the burden of other SPCC rule requirements, without compromising environmental protection. We requested these comments in order to discover additional ways to reduce the information collection burden of the rule. In addition, we requested comments on measures not required by the SPCC rule that would enhance the environmental protection that the rule provides. Our purpose for requesting these comments was to secure information for developing possible future rules or policies, not developing this final rule.

Comments: Cathodic protection. Cathodic protection should be required for all new steel tank bottoms and piping in contact with the soil or other backfill material. (39)

Double walled or vaulted tanks. Technological improvements in AST design standards, particularly in the standards for smaller ASTs, have greatly reduced or totally eliminated the potential for environmental contamination the SPCC requirements were designed to address. Technological advancements include concrete encased doubled– walled tanks, secondary containment, overfill and spill prevention devices, flow restriction and fuel shut off equipment, Early Warning Fire Detection equipment, and interstitial monitoring. (36)

Integrity testing  robotic inspection. We should amend the rule to require that all aboveground bulk oil storage tanks should be subject to periodic integrity inspection and testing at a minimum of once every five years and should use such techniques as internal in service robotic inspection of tank bottoms. (54)

Secondary containment. "Given that API Bulletin 16D has been implemented throughout the oil and gas industry since 1974 and the vast majority of oil and gas production facilities ... are protected by diking or secondary containment it is 14 unnecessary for EPA to propose such far reaching and extremely expensive administrative requirements." (6)

Tank manufacturers. The involvement of the Underwriters Laboratories, Inc (UL) and Underwriters Laboratories of Canada (ULC) would appear to be logical inclusions in the objectives of implementing the entire OPA objectives. "A specific example of a proposed requirement that would immediately enhance the environmental protection the SPCC rule provides without generating any Agency burden would be to stipulate that every tank manufacturer is required to notify existing and prospective end users of the need to comply with the program. This can easily be done via the point of sale invoice generated by the tank manufacturer which can be submitted to the Agency as a source document for auditing purposes." (73)

Response: We appreciate these comments and will consider them for future rulemaking. Today's final rule encourages facilities to use industry practices, standards, and procedures. We also encourage the use of innovative technology that meets rule requirements.

Cathodic protection. Cathodic protection or coatings is already required for all new completely buried steel tank bottoms (§ 112.8( c) 4)). New or replaced buried piping installations must also be protected with a protective wrapping and coating (§ 112.8( d)( 1)).

Tank manufacturers. While we believe it may be desirable for tank manufacturers to advise purchasers of their equipment of the need to comply with SPCC rules, it is the responsibility of the facility owner or operator to comply, whether the manufacturer notifies him or not. As noted above, such a requirement would increase the information collection burden of the rule. 15 4. Threshold Issues  §112.1( d)( 2)( i) and (ii)

Background: In 1997, we asked for comments as to whether any change in the level of storage capacity which subjects a facility to this rule is justified. We noted that we were considering eliminating the provision that requires a facility having a container with a storage capacity in excess of 660 gallons to prepare a Plan, as long as the total capacity of the facility remained at 1, 320 gallons or less. The effect of such a change would be to raise the threshold for regulation to an aggregate aboveground storage capacity greater than 1,320 gallons. We did not at that time suggest or propose any underground storage tank threshold change.

Comments: Support for current threshold. The revision would "... reduce the burden of reporting for facilities storing as few as 25 55 gallon drums and not increase risks to the environment. It is our understanding that the intent of the volume restrictions is based on what volume would cause a "significant" environmental impact. It is highly improbable that numerous individual 55 gallon drums (or similar capacity containers) would fail simultaneously causing a significant environmental impact. " (41, 47, 61, 77)

Support for proposal.

Clarity and consistency. The change would create consistency in the rule by applying one standard of applicability (i. e. total capacity). (14) It would clarify the requirements of the rule. (30)

Cost. Supports elimination of the 660 gallon provision due to the relatively high cost to prepare and implement a Plan as well as the relatively small risk posed by such containers. The 660 gallon provision is a burden on small businesses that must design an SPCC plan for their storage tanks. (2, 5, 6, 7, 9, 10, 13, 15, 28, 29, 30, 32, 36, 38, 42, 43, 45, 46, 48, 49, 53, 58, 64, 66, 71, 74, 75, L2 )

Farms. "...( T) he proposed increase in storage capacity for a single container size to 1320 gallons from 660 gallons is a move in the right direction for our member cooperatives and their patrons. We feel that in most if not all cases that this increase in the size of tanks will have no negative effect on the safety of the environment." (71)

Fewer measures necessary. Supports a higher threshold because "... oil spills from containers of less than 660 gallons can generally be controlled with less extensive spill prevention procedures, methods, and equipment than are required under 40 CFR part 112." (46)

Less environmental risk. "...( T) he costs of preparing extensive SPCC Plans (including the cost of hiring a registered professional engineer) may at times be 16 an unnecessary burden for such facilities, given the quantities of oil actually stored. HC& S believes that the requirement to maintain an SPCC Plan should be based on the environmental risk posed by the facility rather than being strictly based upon the total storage capacity available." (46) "The $2500 average cost to US WEST for a single SPCC plan far outweighs the true risk to the environment since the likelihood of a spill is so improbable." Outlines the various safety devices equipped on such tanks, declaring that these devices provide excellent spill prevention. (48) The present 660 gallon criterion promotes the installation of tanks smaller than 660 gallons. This results in increased deliveries to keep the tanks filled, which therefore increases the probability of spills associated with delivery and filling events. (59) "( T) he current provision discourages pollution prevention and efficient material management. EPA pollution prevention guidance recommends the use of larger containers to reduce waste generation and reduce possibility of stormwater contamination from possible spills and leaks. This will also benefit used oil recycling by encouraging the use of larger containers for accumulation storage, by not having to worry about being required to prepare a written SPCC Plan." (L4)

Other programs. The proposed rule change would not result in a decrease in environmental protection because of other existing oil spill prevention programs or plans. (29, 32, 79, 83, L1)

Hazardous material disclosure. The proposed change is justifiable due to local hazardous material disclosure laws that require facilities with certain thresholds of chemicals to prepare a Plan that includes an emergency response procedure. (L1)

NPDES. "( W) ith the national storm water program fully in place and actively being implemented by either EPA or the states, oil containing tanks are now generally subject to storm water pollution prevention best management practices designed to prevent releases to storm water and the environment." (83)

Reduced duplication. The rule change would reduce "duplication with other federal and local regulations aimed at preventing and preparing for a release or spill of oil." (L1)

Small business. "We believe a number of small businesses, both petroleum marketers and non marketers, would benefit from the proposal and be given reasonable regulatory relief. For example, there are countless numbers of small, temporary storage tanks at construction sites which are there for a short duration of time that, we believe, should not be required to carry out a SPCC Plan." (78) 17 Technological improvements. "...( T) echnological improvements in aboveground storage tank (AST) design standards and the mandates of state/ county fire codes and state or local environmental agencies already provide sufficient spill prevention and control for small ASTs. (36) "...( T) echnological improvements in AST design standards, particularly for smaller ASTs, have outpaced the SPCC plan requirement and caused it to become superfluous. The majority of technological improvements in AST system design over the past twenty five years have been prompted by fire safety interests, and include secondary containment, overfill spill prevention equipment, insulation, inventory control, and release detection equipment. These improvements, although aimed at preventing the spread of fire by containing any released oil, have the dual benefit of preventing spills or releases and subsequent environmental contamination. Whereas in the past ASTs equipped with these improvements were not commonly available, today ASTs smaller than 1,300 gallons are being manufactured with these technological improvements. In addition, smaller ASTs are `shop built' or factory fabricated rather than field erected, resulting in an increased quality of construction and a reduced likelihood of tank failure." (75)

Alternative threshold suggestions.

2,001 gallons. "...( T) he total capacity threshold of 1, 320 gallons should be increased. Many agricultural retailers operate with two 1,000 gallon tanks. However, these tanks are only in use for that part of the year in season. If the agency is serious about providing relief to small businesses, it would also provide agricultural service and input providers  as well as farmers themselves  a total capacity threshold of 2001 gallons." (53)

2,500 gallons. "With the increasing size of farm equipment, larger tank sizes are necessary for efficiencies and we concur with the need for increased tank size. We would propose that this upper limit be increased to 2500 gallons. Larger tanks would require less frequent fueling and handling, and could actually be safer by reducing the number of times a tank needs to be filled." (71)

10,000 gallons. "...( E) xclude all facilities where individual oil containing units have a capacity of 10,000 gallons or less. This is based on the Agency's own survey of facilities potentially subject to the SPCC regulations (" Analysis of the Relationship Between Facility Characteristics and Oil Spill Risk"), and the electric utility industry's record of infrequent discharges of dielectric fluid to navigable waters. EPA's survey categorizes facilities storing less than 10, 000 gallons of oil as `small'. The summary of the regression analysis in Exhibit 2 begins at 10,000 gallons implying that those units are not of regulatory concern. The annual number of discharges to navigable waters from the oil storage 18 facilities exceeds by orders of magnitude the extremely low number of comparable discharges from electrical equipment. These data are a clear indication that "small" capacity tanks and containers (10,000 gallons and less) do not pose a risk that justifies regulation and inclusion within the SPCC program." (70, 76)

Electrical equipment.

15,000 gallons. (27, 31, 35, 69, 70) "...( T) he number of spills from electrical equipment is negligible. Furthermore, spills that have occurred from this equipment are not a significant threat to the environment. In addition, electrical equipment sites typically have a gravel pit, which help absorb and contain any spill that may occur. In general, electrical equipment tanks and containers of this nature do not pose significant risks to the environment sufficient to warrant being included in the SPCC program." (27) "Oil filled equipment has stringent construction requirements resulting in very low spill rates. EPA recognized the insignificance of this equipment in its survey of Characteristics and Oil Spill Risk" (1996, p. 1). The Agency concluded `that facilities with larger storage capacity are likely to have a greater number of oil spills, larger volumes of oil spilled, and greater cleanup costs. '" (35) EPA should "... adopt a general tank threshold of 10,000 gallons (for non electrical equipment) and a single unit threshold of 15,000 gallons for electrical equipment. Considerable EPA data supports this change. EPA has concluded from the survey data "that facilities with larger storage capacity are likely to have a greater number of oil spills, larger volumes of oil spilled, and greater cleanup costs." (65)

Lower threshold.

110 gallons. "DOT consistency dictates setting the threshold capacity at 110 gallons i. e., 2 55 gallon drums. This change would bring EPA into consistency with DOT. Additionally, E& P facilities include small containers e. g., 110 gallons when the plan threshold is attained. Further, as indicated in 40 CFR part 110, oil spills even causing a sheen are devastating. Thus, sheens from home heating oil tanks are every bit as important as sheens from crude oil tanks. We recommend reducing the threshold of applicability to 110 gallons of oil." (8)

250 gallons. "The current thresholds should remain and the only alteration should be the modification of the "navigable waterway to be inclusive rather than exclusive; therefore, the new rule would state: "a facility with a single container of 250 gallons (rather than 660 gallons), an 19 aggregate of 1, 320 gallons OR is considered potentially harmful to the navigable OR ground/ drinking water resources as determined by the appropriate authority, must prepare and implement a certified SPCC Plan." (73)

No aggregate threshold, container threshold only. The threshold should be "changed from a facility basis to a tank basis and that the threshold be set at 660 gallons per tank. ... First, determination of SPCC plan applicability is simpler if a per tank limit is established, as the need to calculate an aggregate oil volume is eliminated. This makes applicability of the rule easier to understand and is particularly important for smaller facilities. Secondly, small tanks pose less risk to the environment because of their limited volume. Experience demonstrates that it is highly unlikely that multiple tanks will fail simultaneously. Therefore, we believe this threshold change would not reduce the effectiveness of the SPCC plans." (41, 47, 61)

Completely buried tanks  63,000 gallon threshold. "Many service stations exceed this capacity, as they commonly store three grades of gasoline in underground storage tanks (USTs) of 15,000 gallons each. A separate regulatory program for USTs, established by the Resource Conservation and Recovery Act (RCRA) Subtitle I and fully implemented as of December 1998, makes application of the SPCC rule unnecessary. Additionally, we believe that the SPCC requirements were not intended to address service stations. Thus, increasing the threshold to approximately 63,000 gallons or 1,500 barrels would be appropriate." (41)

Exemption  electrical equipment. OPA rules are "designed to apply to facilities containing millions of gallons of oil, and it make little sense to apply these requirements to facilities orders of magnitude smaller." (31) Urges a complete exclusion of electrical equipment from the SPCC program. (69)

Minimum container size. De minimis container sizes should exist and these containers should be excluded from calculating aggregate on site storage capacity. Suggestions for a minimum container size ranged from 55 gallons to 25,000 gallons. The majority of these commenters favored either a greater than 55 gallon or greater than 660 gallon threshold. (38, 41, 47, 51, 58, 61, 77)

Less than 55 gallons. We should establish a de minimis volume that would allow containers with a storage capacity of less than 55 gallons to be exempted from the calculation of total facility storage capacity. "...( T) his would eliminate the burden of quantifying oil and oil mixtures in small containers such as pails and carboys. In addition, guidance should be provided with regard to which oilcontaining machines and systems within facilities are to be counted in 20 calculating total facility storage capacity. A de minimis threshold should be considered in this case as well." (51)

660 gallons. Aggregate storage capacity determinations for SPCC plan requirements should not exist and any container below 660 gallons should be considered de minimis. "Containerization is a key factor in limiting spills and that individual container size rather than the aggregate size of all oil containers is an appropriate indicator of spill potential. Small containers, such as those less than 660 gallons, pose less environmental risk than large containers in the event of a discharge. It is also unlikely that multiple small containers will fail simultaneously; therefore, EPA is not reducing the effectiveness of SPCC plans by changing the volume threshold." (47, 61)

Greater than 660 gallons. "...( T) he lack of a size limitation raised the question of whether individual, small containers (e. g., 55 gallon drums) had to be addressed in a SPCC plan. API continues to believe that such small containers need not be addressed, and it reiterates its recommendation that the bulk storage tanks be defined as those with a capacity greater than 660 gallons." (41, 58)

Other factors. "Other factors should also be considered, such as in the FRP applicability  owner history of, spills, proximity to surface waters, type of oil, etc." (40)

Permanently connected containers. "Clarification is needed as to whether small containers that are not permanently connected to any user, such as 55 gallon drums, are to be included in the total plant capacity. We have been lead to believe, by a representative from your Agency, that drums and small containers that are not "hard piped" do not have to be included in the SPCC Plan. For example, transitory drums, whose inventory is variable, would not be considered as part of the storage capacity. In other words, only tanks and other immobile containers that are a permanent part of the facility would be subject to the capacity determination and have to be covered by the SPCC Plan." (38)

Risk based approach. Urges a risk based approach instead of a storage capacity approach to SPCC regulation. (40, 46, 73, L3) "...( A) facility may exceed the 1, 320 gallon threshold, yet may represent a comparatively low environmental risk due to the amount of time such storage capacity is actually in use (according to the Agricultural Retailers Association, oil storage capacity at many agricultural operations may be in use for less than half of the year). Other facilities may have storage capacity for more than 1, 320 gallons of oil, but may utilize only a fraction of that capacity for inventory control purposes (e. g., an operator may choose to use only 500 gallons of storage capacity in a 1, 500 gallon gasoline tank to ensure that the stored gasoline is used before it `goes bad'; the actual volume of storage capacity in use at any time can be easily monitored based on inventory records). Facilities near the 660 gallon and/ or 21 1,320 gallon thresholds are generally smaller businesses with limited resources (for example, small farmers), and the costs of preparing extensive SPCC Plans (including the cost of hiring a registered professional engineer) may at times be an unnecessary burden for such facilities, given the quantities of oil actually stored. HC& S believes that the requirement to maintain an SPCC Plan should be based on the environmental risk posed by the facility rather than being strictly based upon the total storage capacity available." (46) "Numerous attempts have been made by the AST industry and endusers who wish to avoid the burdens of properly preparing a site, primarily due to economic reasons, to simply state the `site is exempt. ' Numerous manufacturers now produce fuel containers of 650 gallons designed to avoid compliance, whether the site is adjacent to a navigable waterway or not. Furthermore, the recent revelation in the December 7 11, 1997 UFC hearings in Tucson, Arizona where an insurance carrier complained about 350 national pollution/ property damage sites for a single AST manufacturer indicate that the problem is epidemic, not isolated! Most name brand tank manufacturers produce a `listed' tank of 250 gallons; naturally, six of these 250 gallon assemblies would exceed the 1, 320 gallon threshold currently proposed. However, five of the 250 gallon assemblies would not qualify for the threshold and yet the risk would be nearly identical dependent upon the design of the tank." (73)

Response: Exemption  electrical equipment. We disagree that operational equipment is not subject to the SPCC rule. We have amended §112.1( b) to clarify that using oil, for example operationally, may subject a facility to SPCC jurisdiction as long as the other applicability criteria apply, for example, oil storage capacity, or location. Such a facility might reasonably be expected to discharge oil as described in §112.1( b). Therefore, the prevention of discharges from such facility falls within the scope of CWA section 311. The definition of "facility" in OPA section 1001( 9) does not apply to this rule.

However, we have distinguished the bulk storage of oil from the operational use of oil. We define "bulk storage container" in the final rule to mean any container used to store oil. The storage of oil may be prior to use, while being used, or prior to further distribution in commerce. For clarity, we have specifically excluded oil filled electrical, operating, or manufacturing equipment from the definition.

Facilities that use oil operationally include electrical substations, facilities containing electrical transformers, and certain hydraulic or manufacturing equipment. The requirements for bulk storage containers may not always apply to these facilities since the primary purpose of this equipment is not the storage of oil in bulk. Facilities with equipment containing oil for ancillary purposes are not required to provide the secondary containment required for bulk storage facilities (§ 112.8( c)) and onshore production facilities (§ 112.9( c)), nor implement the other provisions of §112.8( c) or §112.9( c). Oil filled equipment must meet other SPCC requirements, for example, the general requirements of this part, including §112.7( c), to provide appropriate 22 containment and/ or diversionary structures to prevent discharged oil from reaching a navigable watercourse. The general requirement for secondary containment, which can be provided by various means including drainage systems, spill diversion ponds, etc., will provide for safety and also the needs of section 311( j)( 1)( C) of the CWA.

In addition, a facility may deviate from any inapplicable or inappropriate SPCC requirements, or from most applicable requirements, if the owner or operator explains his reasons for nonconformance and provides equivalent environmental protection by some other means. See §112.7( a)( 2). See also §112.7( d).

Minimum container size. In response to comments, we are introducing a minimum container size to use for calculation of the capacity of aboveground storage tanks or completely buried containers. The 55 gallon container is the most widely used commercial bulk container, and these containers are easily counted. Containers below 55 gallons in capacity are typically end use consumer containers. Fifty five gallon containers are also the lowest size bulk container that can be handled by a human. Containers above that size typically require equipment for movement and handling. We considered a minimum container size of one barrel. However, a barrel or 42 gallons is a common volumetric measurement size for oil, but is not a common container size. Therefore, it would not be appropriate to institute a 42 gallon minimum container size.

You need only count containers of 55 gallons or greater in the calculation of the regulatory threshold. You need not count containers, like pints, quarts, and small pails, which have a storage capacity of less than 55 gallons. Some SPCC facilities might therefore drop out of the regulated universe of facilities. You should note, however, that EPA retains authority to require any facility subject to its jurisdiction under section 311( j) of the CWA to prepare and implement an SPCC Plan, or applicable part, to carry out the purposes of the Act.

While some commenters had suggested a higher threshold level, we believe that inclusion of containers of 55 gallons or greater within the calculation for the regulatory threshold is necessary to ensure environmental protection. If we finalized a higher minimum size, the result in some cases would be large amounts of aggregate capacity that would not be counted for SPCC purposes, and would therefore be unregulated, posing a threat to the environment. We believe that it is not necessary to apply SPCC or FRP rules requiring measures like secondary containment, inspections, or integrity testing, to containers smaller than 55 gallons storing oil because a discharge from these containers generally poses a smaller risk to the environment. Furthermore, compliance with the rules for these containers could be extremely burdensome for an owner or operator and could upset manufacturing operations, while providing little or no significant increase in protection of human health or the environment. Many of these smaller containers are constantly being emptied, replaced, and relocated so that 23 serious corrosion will likely soon be detected and undetected leaks become highly unlikely. While we realize that small discharges may harm the environment, depending on where and when the discharge occurs, we believe that this measure will allow facilities to concentrate on the prevention and containment of discharges of oil from those sources most likely to present a more significant risk to human health and the environment.

Effect on Facility Response Plan facilities. The exemption for containers of less than 55 gallons applies to the calculations of storage capacity both for SPCC purposes and for FRP purposes because the exemption applies to all of part 112. Therefore, a few FRP facilities might no longer be required to have FRPs. The calculations for planning levels for worst case discharges would also be affected.

Permanently connected containers. It is irrelevant for storage capacity calculations whether the container is permanently connected by piping or otherwise. Mobile containers or fixed containers both pose the same risk of a discharge as described in §112.1( b).

Regulatory thresholds. We have decided to raise the current regulatory threshold, as discussed in the 1997 preamble, to an aggregate threshold of over 1, 320 gallons. We believe that raising the regulatory threshold is justified because our Survey of Oil Storage Facilities (published in July 1996, and available on our web site at www. epa. gov/ oilspill) points to the conclusion that several facility characteristics can affect the chances of a discharge. First, the Survey showed that as the total storage capacity increases, so does the propensity to discharge, the severity of the discharge, and the costs of cleanup. Likewise, the Survey also pointed out that as the number of tanks increases, so does the propensity to discharge, the severity of the discharge, and the costs of cleanup. Finally, the Survey showed that as annual throughput increases, so does the propensity to discharge, the severity of the discharge, and, to a lesser extent, the costs of the cleanup.

The threshold change will have several benefits. The threshold increase will result in a substantial reduction in information collection. Some smaller facilities will no longer have to bear the costs of an SPCC Plan. EPA will be better able to focus its regulatory oversight on facilities that pose a greater likelihood of a discharge as described in §112.1( b), and a greater potential for injury to the environment if a discharge as described in §112.1( b) results.

We raise the regulatory threshold realizing that discharges as described in §112.1( b) from small facilities may be harmful, depending on the surrounding environment. Among the factors remaining to mitigate any potential disasters are that small facilities no longer required to have SPCC Plans are still liable for cleanup costs and damages 24 from discharges as described in §112.1( b). We encourage those facilities exempted from today's rule to maintain SPCC Plans. Likewise, we encourage new facilities which are exempted from the rule to develop Plans. We believe that SPCC Plans have utility and benefit for both the facility and the environment. But, we will no longer by regulation require Plans from exempted facilities.

While we believe that the Federal oil program is best focused on larger risks, State, local, or tribal governments may still decide that smaller facilities warrant regulation under their own authorities. In accord with this philosophy, we note that this Federal exemption may not relieve all exempted facilities from Plan requirements because some States, local, or tribal governments may still require such facilities to have Plans. While we are aware that some States, local, or tribal governments have laws or policies allowing them to set requirements no more stringent than Federal requirements, we encourage States, local, or tribal governments to maintain or lower regulatory thresholds to include facilities no longer covered by Federal rules where their own laws or policies allow. We believe CWA section 311( o) authorizes States to establish their own oil spill prevention programs which can be more stringent than EPA's program.

Alternative thresholds. We continue to believe that a facility with a storage or use capacity greater than 1,320 gallons should be subject to the SPCC rule and be required to prepare and implement a prevention plan. We believe that SPCC Plans help to prevent discharges as described in §112.1( b) and resulting cleanups We disagree with the commenter that our presentation of survey results was intended to imply that storage capacity below 10,000 gallons is not of regulatory concern. The Survey shows that the predicted relationship between total tank capacity and annual spill volume remains the same for facilities storing less than 10,000 gallons as those storing more. Because we believe that the same preventive measures are applicable for most facilities, we apply those measures to all regulated SPCC facilities. Where those measures are not applicable, the owner or operator may deviate from the requirement if he provides reasons for nonconformance and provides equivalent environmental protection. 40 CFR 112.7( a)( 2).

Completely buried tanks  threshold. We proposed no changes in the threshold for completely buried tanks. We note, however, that such tanks 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 no longer subject to part 112.

Regulatory safeguard. When a particular facility that is below today's threshold becomes a hazard to the environment because of its practices, or for other reasons to effectuate the Clean Water Act, the Regional Administrator may, under a new rule provision, require that facility to prepare and implement an 25 SPCC Plan. See §112.1( f). This provision acts as a safeguard to an environmental threat from any exempted facility.

Risk based approach, other factors. We believe that a program based on potential storage capacity is necessary, rather than a risk based approach, because the potential storage capacity may be changed, at the owner's or operator's option. A facility with a storage capacity above the threshold amount poses sufficient risk to the environment to warrant an SPCC Plan due to the amount of oil which could be discharged. The SPCC rules adopt a risk based approach in that they seek to prevent threats to the environment based on the risk of a potential discharge as described in §112.1( b). If any requirement is inappropriate for any facility, the owner or operator may explain his reasons for nonconformance and provide equivalent environmental protection. 26 5. §§ 112.2 and 112.7 Introduction  Alternative Plan Formats Background: In 1991, we proposed a definition for "SPCC plan or Plan." In 1997, we withdrew the 1991 proposed definition in favor of a revised definition. The revised definition would describe an SPCC plan and would allow any alternative format acceptable to the Regional Administrator if it: (1) meets all regulatory requirements in the SPCC rule; and (2) is cross referenced by SPCC rule provision to the equivalent requirement in the other plan. We proposed to amend both §112.2 and the introduction to §112.7 to effect this change.

Comments: Support for proposal. "Reynolds wholeheartedly supports EPA's proposal to allow alternative plans to meet SPCC Plan requirements. Use of plans such as the Integrated Contingency Plan or equivalent State plans which meet the requirements of 40 CFR 112 will satisfy the goals and objectives of the SPCC program and facilitate safe, efficient incident prevention and response activities." (10, 11, 14, 17, 22, 23, 26, 28, 32, 34, 37, 38, 41, 42, 45, 51, 55, 56, 58, 65, 66, 67, 71, 73, 74, 79, 80, 82, 83, 84, L1, L5).

Opposition to proposal.

Substantive requirements. "The last two sentences in the proposed definition of SPCC plan in section 112.2 contain substantive requirements and should therefore be deleted and relocated to section 112.7 which is there in reference. (3) "In the past an SPCC plan was a written description of physical measures taken to prevent the discharge of oil, the release of which could possibly impact a navigable water; or as in 112.5( a) a plan amendment is required if changes are made to `Facility design, construction, operation and maintenance which materially affects the facility's potential for the discharge of oil into or upon the navigable waters of the United States. ' The definition proposed today is far reaching, requiring `details of equipment, manpower, procedures and steps to prevent, control and provide adequate countermeasures to an oil spill. ' " (6)

Other problems. "It is my opinion that the ICP concept is over rated. ... How is an Engineer to certify an ICP? ... Sequential cross referencing could be a nightmare. The EPA requires that they review and approve state plans for USTs; are they not requiring approval of each State Plan for oil spills?" (40)

API D16 format. "While being able to use an ICP or a State Plan will help consolidate plans and eliminate duplication, we are concerned that the proposal unduly constrains the plan formats by restricting it to ICP format or State Plans. Since 1974, E&) operations have successfully implemented the API format (API Bulletin D16). ... RMOGA encourages EPA to allow the continued use of the API D16 format for small, non OPA 90 facilities...." (8, 49) 27 Cross referencing.

Support for cross referencing. "The requirement to sequentially cross reference the alternative plan ensures that it is substantively equivalent to the guidelines prescribed in Section 112.7. Any further requirement to obtain the Regional Administrator's approval of a sequentially cross referenced plan would be an exercise in redundancy at odds with the purpose of this proposal to reduce the information collection burden of the SPCC rule." (21)

Opposition to cross referencing. "With no requirement to submit SPCC Plans to the Agency for review and/ or approval, the cross referencing creates an additional administrative burden with no recognizable benefit. As long as the single comprehensive plan contains elements which comply with the § 112.7 regulations, there should be no need for a cross referencing requirement. The burden should be, and is, on the regulated entity to comply with the regulations through the preparation of SPCC Plans as appropriate." (43)

Editorial suggestion. "On page 18 in §112.2, the phrase `... be sequentially cross referenced… should be `... be cross referenced..., since it is not clear which sequence in which plan is being referred to. The ICP guidance refers to `matrices, which is a slightly different approach than cross referencing." (16)

Level of cross referencing. "At what level is a cross reference required? 112.7 or 112.7( a); 112.7( c) or 112.7( c)( 1) or 112.7( c)( 1)( I)? What if, at the lowest level, the cross reference is at two or more locations in the other format? (e. g, 112.7( e)( 1)( ii)  Existing plant drainage may be discussed in one section of the ICP but the responsibility to review proposed construction of new catchment basins may be located in another section of the ICP? " (40)

EPA approval of format.

Should not be required. Equivalent formats that are consistent with 40 CFR 112.7 requirements are acceptable SPCC plans that should not require the approval of the Regional Administrator. The rule as it is presently written does not properly reflect this sentiment, and therefore we should clarify it. (21, 41, 47, 52, 58, 61, 77)

Editorial suggestion  compliance. "The plan is required to comply with the regulation, but is not a written document of compliance. Compliance is determined by comparing the contents of the plan with the regulations." (47, 61) 28 Integrated Contingency Plans (ICPs). Supports proposal to include the ICP as an example of an acceptable SPCC plan format. (3, 7, 21, 40, 41, 48, 51, 52, 58) Use of a single plan in situations where a single entity operates a number of facilities that are similar in design would substantially reduce the paperwork burden on the owner or operator of the facilities while maintaining the same level of environmental protection. Using a single plan would reduce the burdens associated with plan maintenance without any reduction in environmental protection. (31) Burden would not be reduced. "... (T) he ICP concept is over rated. If operators want to prepare a consolidated training plan and a consolidated response plan, they have always had the right to do so." (7, 40) .

Extent of integration. "In the event one selects the Integrated Contingency Plan format, will it be required to include all related plans at a facility or will partial integration at the selection of the facility be acceptable? The proposal appears to be silent on this point. Michelin suggests that the rules be written to state that facilities will have the flexibility of partial integration to avoid the potential reservations a preparer may have for undertaking the much greater task of producing a totally unified plan in one project." (3)

Information collection burden. "EPA does not contemplate that the use of an ICP or other format would reduce the information collection burden, but it would simplify compliance with multiple applicable statutes and rules. Unfortunately, "information collection" (and updating, verification, validation, display, organization, structure, presentation, analysis, storage and archiving of the massive amount of information after collection) is ninety nine percent of the burden (especially costs) of compliance; actual spill emergencies occupy the remaining one percent. The statement conflicts with another statement on page 1: `... the proposal would maintain the same standards of environmental protection while reducing its information collection burden. '" (16)

Multi facility plans (electric utilities and other operational users of oil. Supports our approval of a facility area response plan format as an alternative to site specific SPCC plans. (18, 20, 31, 35, 57, 60, 61, 65, 69, 70) In order to avoid misinterpretation at the EPA regions and state levels, the regulation should specifically mention the allowance of system wide response plans for electrical equipment. (57)

Electrical equipment (area wide response plans). The EERP is "... a document that describes the utility's procedures for responding to releases of dielectric fluid from electrical equipment. This type of plan would describe the positioning of response crews and equipment, identify procedures for contacting response contractors if needed, and describe the procedures that spill responders would use to contain a spill and summon additional assistance if necessary. The scope of the proposed EERP would not address every aspect of an SPCC plan 29 or an OPA response plan because those programs were designed to apply to oil storage and transfer facilities. However, as we have described in the past, the risks posed by electrical equipment are de mini mis, when the totally enclosed nature and structural strength of the equipment, its operational characteristics, and its spill history are properly taken into account." (20, 31)

The following characteristics of electrical equipment require that such equipment be subject to different SPCC requirements, documented in area response plans in lieu of site specific SPCC plans:

1. Electrical equipment is built to more stringent standards than typical tanks. 2. Most units are effectively self monitoring because the release of dielectric fluid results in an interruption in the transmission of electric power. 3. Dielectric fluid is infrequently added to or removed from electrical equipment, practically eliminating transfer related releases. 4. The mineral oil contained in electrical equipment has substantially lower toxicity than fuel oils. Also, there are very few soluble components in mineral oil, minimizing its potential to damage aquatic ecosystems. 5. All utilities with electric distribution systems have mobile crews that are trained and equipped to respond to releases from electrical equipment. When a release is reported or detected through inspection or alarm, a crew is dispatched to the facility. 6. Many utilities not only have these systems in place, but also have them documented in the form of policies, response plans, or response manuals. (31)

"The equipment containing significant oil can be inspected for its adjacency to traffic. If the risk of vehicular impact is high, traffic barriers can be constructed to prevent collisions. This process will vastly reduce the most common cause of a release. During the above inspections, a determination can be made to decide if some equipment should be protected with secondary containment. Also during the inspections, the equipment can be checked for any areas of concern. Should a problem be identified, measures can be taken to mitigate the problem. A general spill prevention response procedure can be written for distribution equipment, and corresponding training be given, so employees can take measures to prevent spills and can respond appropriately to a spill. (Note: SPCC training is already given to these employees for substation equipment.) Also note that distribution equipment is currently labeled with an emergency call number should a passerby note anything peculiar." (32)

"The plan is recommended to include: (1) Identification of all facilities containing electrical equipment subject to the Plan; (2) The location of available equipment 30 to respond to releases of dielectric fluid for electrical equipment (the equipment may be located at the facilities, in mobile response units, or in one or more central locations); (3) The training of employees to identify, characterize, and respond to releases of dielectric fluid; (4) The identification of equipment, personnel, and/ or contractors to respond to releases of dielectric fluid; and, (5) Procedures for notification, internal and where applicable, the National Response Center, state and local authorities. ' (60)

Paperwork reduction. "Significant reductions in the paperwork requirements of the SPCC regulation could be made if EPA allowed the use of response plans for electrical equipment, which electric utilities already have in place, in lieu of site specific SPCC plans." (31, 35)

Other formats. Asks for clarification concerning whether we would allow different formats, in addition to the ICP, to be acceptable for SPCC purposes. (3, 8, 21, 30, 31, 41, 42, 47, 48, 49, 52, 58, 61) Any alternate formats should be allowed so long as these formats are consistent with the requirements outlined in 40 CFR 112.7. (42, 47, 61)

State plans. "In an effort to comply with the President's regulatory reform directive, the Company urges the Agency to allow alternative spill plan formats and the Integrated Contingency Plan to be used to fulfill the requirements of the SPCC regulations. Michigan law requires facilities to prepare and implement a spill control plan if they meet the applicability requirements of the Michigan Natural Resources and Environmental Protection Act, Part 5, Spillage of Polluting Materials. The applicability requirements are similar to those of the SPCC regulations. Requiring facilities to prepare an additional plan would not be justified under the President's regulatory reform directive nor the paperwork reduction requirements of the SPCC regulation. (76)

EPA approval. "The EPA requires that they review and approve state plans for USTs; are they not requiring approval of each State Plan for oil spills? How about a list of States with such plans or approved plans?" (40)

SWPPP. Commenters urge "the Agency to consider the applicability of a NPDES Storm Water Pollution Prevention Plan (SWPPP) as an acceptable format since spill prevention and response is an integral, and critical part of a SWPPP." (30, 42)

Tank manufacturers. "Section 112.2 Definitions "Spill Prevention, Control, and Countermeasure Plan; SPCC Plan; or Plan means the document..... The Plan is a written document...... It is prepared in writing and in accordance with the format specified..... If a tank manufacturer or owner or operator of a facility chooses to prepare a plan using either the Integrated Contingency Plan format or a State format or any 31 other format acceptable to the Regional Administrator, such plan must meet all of the requirements in section 112.7, and be sequentially cross referenced from the requirement in section 112.7 to the page( s) of the equivalent requirement in the other plan. Rationale. As previously submitted by SPC Corp, a key component in implementing a cost effective, easily audited national Oil Pollution Prevention program is the participation of the tank manufacturing community; this would immeasurably increase the US EPA  s database while correctly linking tank purchase, installation and owner/ operator maintenance to achieve the goals of the program. Non compliance discovery/ corrective action could be expedited under this format as well." Suggests a modification of the rule to place the initial responsibility for information upon the tank manufacturer much like the requirement in UST regulations. This would "... remove the confusion of who must comply by generating a database for the Agency which will place all existing and new owner/ operators on notice to inquire about compliance. Simply put, at the point of sale, the tank manufacturer will reference on his/ her invoice the need to contact the appropriate federal, state and/ or local agency and REGISTER the tank with site specific information such as gallonage, type of tank construction (singlewall/ bare steel versus protected tank, e. g.) In addition, the tank manufacturers will independently provide the Agency with an historical data base with the pertinent information as previously outlined so that the Agency may notify end users of the need to implement an SPCC or FRP Plan." (73)

Written plans. "First, on page 18 in the above document, §112.2 Definitions, `written description  should be further annotated as meaning `text, graphs, charts, maps, photos, and tables, on whatever media, including floppy, CD, hard drive, and tape storage that allows the document to be easily accessed, comprehended, distributed, viewed, updated and printed... ' This phraseology supports the various initiatives underway to automate plans in electronic format. (This phrasing should also be applied to the Integrated Contingency Plan, the Facility Response Plan, and any other plan to be subsumed within an ICP.)" (16)

Response: Support for proposal. We appreciate commenter support.

Substantive requirements. We have transferred all of the proposed substantive requirements in the 1997 proposed definition of "SPCC Plan" to the introduction of this section. We did this because we agree with commenters (see the comments on the definition of" SPCC Plan" in §112.2) that definitions should not contain substantive requirements.

Acceptable formats. We agree that any equivalent prevention plan acceptable to the Regional Administrator qualifies as an SPCC Plan as long as it meets all Federal requirements (including certification by a Professional Engineer), and is crossreferenced from the requirement in part 112 to the page of the equivalent plan. We do 32 not agree that we should specify acceptable formats. We will give examples of those acceptable formats, but those examples are not meant to be exhaustive.

Examples of an "equivalent prevention plan" might be, for instance, an Integrated Contingency Plan, a State plan, a Best Management Practice Plan (which is a component of the Storm Water Pollution Prevention Plan), or other plan that meets all the requirements of part 112 and is supplemented by a cross reference section identifying the location of elements in part 112 to the equivalent requirement in the other plan. If the equivalent prevention plan has no requirement that a Professional Engineer certify it, it will be necessary to secure proper certification from the Professional Engineer to comply with the SPCC rule.

Another example of an equivalent plan might include a multi facility plan for operating equipment. This type of plan is intended for electrical utility transmission systems, electrical cable systems, and similar facilities which might aggregate equipment located in diverse areas into one plan. Examples of operating equipment containing oil include electrical equipment such as substations, transformers, capacitors, buried cable equipment, and oil circuit breakers.

A general, multi facility plan for operational equipment used in various manufacturing processes containing over the threshold amount of oil might also be acceptable as an SPCC Plan. Examples of operating equipment used in manufacturing that contains oil include small lube oil systems, fat traps, hydraulic power presses, hydraulic pumps, injection molding machines, auto boosters, certain metalworking machinery and associated fluid transfer systems, and oil based heaters. Whenever you add or remove operating equipment in your Plan that materially affects the potential for a discharge as described in §112.1( b), you must amend your Plan. 40 CFR 112.5( a).

Multi facility plans would include all elements required for individual plans. Sitespecific information would be required for all equipment included in each plan. However, the site specific information might be maintained in a separate location, such as a central office, or an electronic data base, as long as such information was immediately accessible to responders and inspectors. If you keep the information in an electronic data base, you must also keep a paper or other backup that is immediately accessible for emergency response purposes, or for EPA inspectors, in case the computer is not functioning. Where you place that site specific information would be a question of allowable formatting, as is the question of what is an "equivalent" plan; an issue subject to RA discretion.

Still another example of an equivalent plan might be a Best Management Practice Plan (BMP) plan prepared under an NPDES permit, if the plan provides protections equivalent to SPCC Plans. Not all BMP plans will qualify, as some BMP plans might 33 not provide equivalent protection. NPDES permits without BMP plans would not qualify.

BMP plans are additional conditions which may supplement effluent limitations in NPDES permits. Under section 402( a)( 1) of the CWA, BMP plans may be imposed when the Administrator determines that such conditions are necessary to carry out the provisions of the Act. See 40 CFR 122.44( k). CWA section 304( e) authorizes EPA to promulgate BMP plans as effluent limitations guidelines. NPDES rules provide for BMP plans when: authorized under section 304( e) of the CWA for the control of toxic pollutants and hazardous substances; numeric limitations are infeasible; or, the practices are reasonably necessary to achieve effluent limitations and standards to carry out the purposes of the CWA.

Cross referencing. We agree that the term "sequential" cross referencing may be confusing, and have therefore deleted it in favor of a requirement to provide crossreferencing We disagree that cross referencing provides no benefit. With the wide variation now allowed in differing formats, we need cross referencing so that an inspector can tell whether the Plan meets Federal requirements, and whether it is complete. In addition, in order for an owner or operator to do his own check to ensure that his facility meets all SPCC requirements, he must go through the exercise of comparing his Plan to each SPCC requirement. Cross referencing in the context of the rule means indicating the relationship of a requirement in the new format to an SPCC requirement. The cross referencing must identify the Federal section and paragraph for each section of the new format it fulfills, for example, §112.8( c)( 3). Note the crossreferencing table we have provided for your convenience in section II. A of today's preamble.

An equivalent Plan might be a Plan following the SPCC sequence in effect before this final rule became effective. If you choose to use the sequence of the rule currently in effect, you may do so, but you must cross reference the requirements in the revised rule to the sequence used in your Plan. We have provided a table in section IV. A of today's preamble to help you cross reference the requirements more easily. If the only change you make is the addition of cross referencing, you need not have a Professional Engineer certify that change.

EPA approval of format. Any format that contains all the required elements of an SPCC Plan and provides equivalent environmental protection would be presumptively acceptable. The final decision on what is an "equivalent" plan, however, would be at the discretion of the Regional Administrator. "Equivalence" would not mean that an alternate format would be the mirror image of an SPCC Plan, but it would have to contain all the required elements of an SPCC Plan. Required elements include, but are not limited to, provisions for a written plan, secondary containment or a contingency plan following 40 CFR part 109, equivalent inspections and tests, security, personnel 34 training, and certification of the plan by a Professional Engineer. Acceptance of an equivalent plan does not, however, imply any type of approval or submission process. As before, SPCC Plans are generally not submitted to the Regional Administrator. The Regional Administrator could accept an equivalent prevention plan if it: (1) meets all regulatory requirements in the SPCC rule; and (2) is supplemented by a crossreference section identifying requirements listed in part 112 to the equivalent requirements in the other prevention plan. Partial use of other equivalent prevention plans is also acceptable, if the plan is supplemented by elements that meet the remainder of the EPA requirements contained in part 112.

Editorial suggestion  compliance. We agree that the Plan does not document compliance, but merely spill prevention measures and have deleted the sentence noting that the Plan documents compliance with the rules. Compliance is determined by comparing the contents of the Plan with the regulations.

Integrated Contingency Plans (ICPs). If an owner or operator uses the ICP format, total or partial integration of other Plans is acceptable, at the owner's or operator's option. We never said that use of the ICP would reduce the information collection burden, but that it would simplify compliance with multiple applicable statutes and rules. The Professional Engineer (PE) must certify the SPCC portion of the ICP. PE certification of other parts of the ICP is only necessary if required by some other authority.

Response Plan. We disagree that the proposed definition constitutes a "response plan." The definition results in no substantive changes in response planning requirements.

State plans. We do not maintain a list of States with oil discharge prevention programs. It is the responsibility of the owner or operator to inform himself of State requirements. However, the Office of Underground Storage Tanks maintains a list of States with programs approved pursuant to 40 CFR part 281.

Tank manufacturers. We decline to make the requested change because the owner or operator of the facility, not the tank manufacturer, is responsible for the preparation and implementation of a Plan.

Written plans. We agree that a "written" Plan might also include texts, graphs, charts, maps, photos, and tables, on whatever media, including floppy disk, CD, hard drive, and tape storage, that allows the document to be easily accessed, comprehended, distributed, viewed, updated, and printed. Whatever medium you use, however, must be readily accessible to response personnel in an emergency. If it is produced in a medium that is not readily accessible in an emergency, it must be also available in a medium that is. For example, a Plan might be electronically produced, but computers fail and may not be operable in an emergency. For an electronic Plan, therefore, a 35 backup copy must be readily available in another medium. At least one version of the Plan should be written in English so that it will be readily understood by an EPA inspector. 36 6. Information Submitted After Certain Discharges  §112.4( a)

Background: In 1991, we proposed to require more information than is currently required in the rule for reporting certain discharges. If your facility discharged more than 1,000 gallons in a discharge as described in §112.1( b), or discharged oil in quantities that may be harmful in more than two discharges as described in §112.1( b) within any consecutive twelve month period, you would have been required to submit certain information to the Regional Administrator.

In 1993, we proposed a modification to §112.4( d)( 1) which would allow the Regional Administrator to require the submission of the listed information in §112.4( a)( 1) at any time, whether or not there had been a discharge as described in §112.1( b).

In 1997, we proposed a reduction of the amount of information currently required by §112.4( a). We proposed to eliminate the following information, unless the Regional Administrator specifically requested it: (1) the date and year of initial facility operation; (2) maximum storage or handling capacity of the facility and normal daily throughput; and, (3) a complete copy of the SPCC Plan with any amendments.

Comments: Support for proposal. (10, 14, 23, 30, 34, 37, 41, 42, 43, 52, 55, 57, 58, 67, 71, 80, 82, 84, L1, L5) "In the case of the first two items, the agency may already have this data, which is useless for responding to the environmental threat. In the case of the SPCC plan submittal, this action will reduce the amount of paperwork that the agency may try to plow through in the initial phase of containment or cleanup. The relevant data of the SPCC is required to be sent to EPA separately so there is no need to duplicate this information by sending the SPCC plan." (42) "The reporting requirements that EPA has proposed to eliminate are not necessary as part of a postspill report to accurately assess the spill, In addition, ... the Regional Administrator has authority to request additional information pertinent to a spill event, as needed, and so retains authority to access the information which USEPA is proposing for elimination from the rules." (43) "...( M) uch of the information required in reporting a release according to the SPCC guidelines is not necessary. Insignificant items such as date and year of initial operation, and daily throughputs provide little help in analyzing a spill event and may delay facility response time. We agree that it should be left to the regulators discretion whether they need to see an SPCC plan with an amendment after a release." (56)

Opposition to proposal.

Duplicative information. We should "... take a more significant step to eliminate the paperwork burden by deleting this duplicative reporting requirement in its entirety. Spill reports must be made for these same spills under various other EPA programs, such as the Clean Water Act and the Emergency Planning and 37 Community Right to Know Act. If burden reduction without diminishing environmental protection is the goal, the deletion of the spill reporting requirement will provide the regulated community with a substantial measure of relief." (31) "... (T) he regulations should not require persons to review their SPCC plan and report (to the state and EPA) after any two spills to navigable water in a 12 month time frame. This requirement entails production of much paper (flow diagrams, topographical maps, failure analyses, descriptions of corrective action measures, repairs, and additional preventive measures, and a complete copy of the SPCC plan) and is in two senses duplicative. First, spill reports must be made for these same spills under various other EPA programs, such as the Clean Water Act and Emergency Planning Community Right to Know Act. Second, EPA often already has some of these documents (e. g. the SPCC plan). Further, even if EPA drops the 12 month requirement, the agency will still receive information under the SPCC program of significant releases (releases over 1000 gallons)." (65)

Entire Plan needed. "Elimination of the need to submit a copy of the SPCC Plan after a substantial release is, with all due respect, just plain stupid. How could the EPA possibly evaluate the REAL cause of a spill if you do not have the most vital piece of information? This is silly. At least require that they certify that they have a SPCC Plan; that they were, or were not, in full compliance with the Plan at the time of the release; and the name of the certifying engineer." (40)

Little consequence. "These post 60 day spill reports to Regional Administrators do not appear to have been done in the past. A query in the past to Regional Offices was unable to ascertain where such reports should be sent. Increased staffing of Regional Offices since then may have made such reporting useful. In any case, the reduced reporting is acceptable although of little consequence." (7)

Proposal a "sham." "The proposed rule provides for the Regional Administrator [RA] to request the three items for elimination. Based on long experience with the Agency, we know the RA will request the data. Accordingly, the proposal is a sham. Recommendation: Do not modify the current SPCC plan rule." (8)

Calculation of time for discharge reports required by §112.4( a).

"Block" basis. Support for block basis. (21, 31, 70, 76). Urges that "...( T) he reporting provision be revised to specify the block count. Notification must still be provided to the National Response Center (NRC) for all spill events. The use of a `block' basis reduces the reporting burden without compromising EPA's ability to obtain timely information." (21) "EPA's intent in the current rulemaking to clarify the standards and reduce the regulatory burden without adversely 38 affecting human health or the environment would be further implemented if EPA makes clear that the oil spill reporting requirement specified in section 112.4( a) is based on consecutive annual periods, rather than a rolling basis... The use of the "block" basis reduces the reporting burden without compromising EPA's receipt of timely information. All spill events, whenever they occur, still must be reported to the NRC and the use of "block" reporting avoids needless duplication. (31)

Discharge threshold  each discharge.

25 gallons  each discharge, offsite category. Urges "( S) etting a 25 gallon threshold for the multiple spill reporting requirement; Create an `off site report' category (in which off site reports would not count towards the two spills quota; Relax the reporting requirements for very minor releases of petroleum products to storm drains, or other man made structures; Implement a retraction feature if the sheen dissipates within 24 hours." (65)

42 gallons  each discharge. Written reports should only be required if the spills exceed an aggregate volume of 42 gallons. (60, 70, 76) "We have had several occasions where our power plants released very small amounts of oil, less than one pint, twice within 12 months which initiated the written reporting requirement. In no case has the reason for the spills been a recurring problem with a storage system, but normally a release of a small amount of oil from a lube pipe leak, oil level sight glass crack, etc. Since the volume of a single spill which triggers the reporting requirement indicates that mainly large spills are of concern to the agency, these small spills create a reporting burden on the regulated community and a monitoring burden on the Agency. While we continue to support the verbal reporting of all spills to navigable water to the National Response Center and the applicable state and local authorities, the provision to provide written follow up when the aggregate volume of the two spills is very small is unnecessary. We propose that written follow up be provided when the aggregate volume of two spills within a twelve month period exceeds 1 barrel (42 gallons). " (60)

Discharge threshold  1,000 gallon discharges.

55 gallons. "...( A) ny discharge in excess of 55 gallons [should] be considered a reportable incident. This will create a database which accurately reflects the cause of the discharge, the corrective action, and any liabilities or need for ongoing supervision. To suggest to the fuel storage owner/ operator community that thresholds are being raised to exempt current carelessness will, most probably result in an interpretation that the Agency does not have concerns for 39 discharges of less than 1,000 gallons! As most surveys have demonstrated over 90% of discharges are less than 1,000 gallons." (73)

Maps, flow diagrams, and charts. Opposes mandatory submission of maps, flow diagrams and charts. (31, 60, 70, 76) "( T) his information will be of no additional benefit to the Agency. The majority of spills which have been reported by AEP are normally less than one (1) gallon and in most cases less than one (1) pint. Submitting maps, diagrams and charts adds bulk to the report without added substance. We recommend that the owner or operator have the option to submit the maps, diagrams and charts as needed to completely describe the spill or actions taken." (60)

Response: Support for proposal. We appreciate commenter support.

Additional information. If the Regional Administrator requires other information, for example, concerning the spill pathway, or any response measures taken, this request is authorized under renumbered §112.4( a)( 9), current §112.4( a)( 11).

Adjoining shorelines, natural resources, affected natural resources. Discharges into navigable waters are not the only discharges reportable for purposes of this section. We note that any discharge as described in §112.1( b) is also within the scope of this section's reportable discharges.

Calculation of time for discharge reports required by §112.4( a). We believe a "rolling" basis is the appropriate method to calculate a discharge as described in §112.1( b) for purposes of the rule because discharges as described in §112.1( b) that are closer in time are more likely to be related in cause. Discharges that are more proximate in time may indicate a problem that needs to be remedied. A "rolling basis" means that each discharge as described in §112.1( b) triggers the start of a new twelve month period. For example, if discharge #1 occurred on January 1, and if discharge #2 occurred on June 2, discharge #2 would trigger the regulatory submission and would start a new twelve month period. If discharge #3 occurred on the following February 3, it would again trigger a submission, because discharge #3 would be within 12 months of discharge #2. While the "rolling basis" would trigger more regulatory submissions than the "block basis," we believe that it would enhance environmental protection because it would call potential problems to the attention of the Regional Administrator sooner, and allow them to be remedied sooner by a Plan amendment where necessary.

"Block" basis. The other approach would be to use a "block" period. Under this type of calculation, each third discharge as described in §112.1( b) would not trigger a submission if it occurred within 12 months of discharge #2, but it would start the beginning of a new 12 month period. For example, if discharge #1 occurred on January 1, and discharge #2 on June 2, discharge #2 would trigger a submission. Discharge #3 on the following February 3 would not trigger a 40 submission, but would start a new 12 month period. The principal justification for block reporting is also that discharges more closely related in time are more likely to be related. Our concern with this method is that if the February 3 discharge (i. e., discharge #3) is within twelve months of discharge #2, this situation could indicate that there is a problem that has not been remedied, so the February 3 discharge should trigger a reporting submission.

Declaration of compliance. We also disagree that a declaration of compliance by the owner or operator is necessary. In many cases such a declaration would only be selfserving Ultimately, whether a facility is in compliance with the rule is a determination for the RA to make.

Discharge threshold. 42 gallons. We agree that a higher threshold of reporting discharges is justifiable because we believe that only larger discharges should trigger an EPA obligation to review a facility's prevention efforts. We also agree that a higher threshold should trigger a facility's obligation to submit information and possibly have to take further prevention measures. Therefore, we have changed the threshold for reporting after two discharges as described in §112.1( b). Under the revised rule, if you are the owner or operator of a facility subject to this part, you must only submit the required information when in any twelve month period there have been two discharges as described in §112.1( b), in each of which more than 42 U. S. gallons, or one barrel, has been discharged. We adopted the 42 gallon threshold on a commenter's suggestion. We believe that a 42 gallon threshold is the appropriate one to trigger a facility's information and possibly to have to take further prevention measures. When multiple discharges occur at a facility subject to the SPCC program, such as a generating station, they often involve the discharge of very small amounts of oil, and these discharges tend to come randomly from a lube pipe, an oil level sight glass crack, or some other apparatus, and do not normally indicate a recurring problem with the container. Having two or more of these small discharges does not indicate that the facility's SPCC Plan requires revision. The other reporting threshold of 1, 000 gallons in any a single discharge as described in §112.1( b) remains the same. Facility owners or operators must continue to report to the National Response Center discharges of oil that cause a sheen or are in other ways harmful, as specified in 40 CFR part 110. See the discussion below under "Sheen" rule.

We disagree that a sheen caused by a discharge as described in §112.1( b) over the threshold amount that disappears within 24 hours should not require submission of information. The discharge itself may indicate a serious problem at the facility which needs to be corrected. The discharge report may give us the information necessary to require specific correction measures.

Inapplicable information. If a particular information request is inapplicable, you may omit it, but must explain why it is inapplicable. 41 Information submission at any time. We agree with the commenter that the 1993 proposal to give the Regional Administrator authority to require submission of the requested information in this section at any time is vague, and have therefore withdrawn that part of the proposal. We will only require such information after the discharges specified in this section.

Maps, flow diagrams, and charts. In response to comments which questioned the usefulness of such information, we have modified the provision regarding maps, flow diagrams, topographical maps (now required by paragraph (a)( 6) of the current rule) to clarify that only the information necessary to adequately describe the facility and discharge, such as maps, flow diagrams, or topographical maps is necessary  not necessarily all of the information listed in the paragraph. To effect this change, we added the words "as necessary" after "topographical maps." "As necessary" means as determined by the owner or operator, subject to the obligations of this rule, unless the RA requests more information. There might be circumstances in which the owner or operator would submit only a brief description of the facility or a map, for example, because flow diagrams and topographical maps were unnecessary to describe the discharge, and would not help the RA to determine whether any amendment to the Plan was necessary to prevent future discharges as described in §112.1( b).

Maximum storage or handling capacity. In 1997, we proposed deletion of current paragraph (5) (renumbered as paragraph (4) in today's final rule), concerning the maximum storage or handling capacity of the facility and normal daily throughput. We have reconsidered this proposal and decided to withdraw it because the referenced information is necessary information. We have therefore retained the language in the rule. Storage capacity and normal daily throughput are important indicators of the impact of a potential discharge as described in §112.1( b).

Off site category. There is no necessity for an "off site" category of discharges as described in §112.1( b) because only a discharge as described in §112.1( b) that originates in a facility subject to this part counts for purposes of §112.4( a).

"Sheen" rule. The duty imposed by the CWA to report to the National Response Center all discharges that may be harmful, further described by 40 CFR 110.3, is unchanged. Those discharges include discharges 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.

Submission of entire Plan. CWA section 311( m) provides EPA with the authority to require an owner or operator of a facility subject to section 311 to make reports and provide information to carry out the objectives of section 311; and CWA section 308( a) 42 provides us with authority to require the owner or operator of any "point source" to make such reports as the Administrator may reasonably require. Therefore, we disagree that submission of the entire Plan is always necessary when reporting discharges under §112.4( a). We believe the information now required to be submitted is adequate to assess the cause of discharge and the ability of the facility to prevent future discharges. If the RA believes that the entire Plan has utility, he can request it. However, we disagree that RAs will always require submission of the Plan, or other information not required, as a matter of course. RAs may use their administrative discretion not to require the submission of a Plan or other additional information. 43 7. Five Year Plan Review and Certification  §112.5( b)

Background: Current §112.5( b) requires that an owner or operator of a facility subject to §112.3( a), (b), or (c) complete a review and evaluation of the SPCC Plan at least once every three years from the date the facility becomes SPCC regulated. At the time of review, the owner or operator must amend the SPCC plan if more effective control and prevention technology would significantly reduce the likelihood of a spill and if the technology has been field proven at that time. In 1997, we proposed to extend this review period from at least once every three years to at least once every five years. Also in 1997, we proposed that the owner or operator must certify completion of the review and evaluation. The certification would include a signed and dated statement that indicates that the review has taken place and whether or not amendment of the Plan is required. The statement would be part of the Plan or in a log or an appendix to the Plan.

Comments: Support for proposal. "Reynolds supports changing the review and evaluation cycle for SPCC Plans from once every three years to once every five years. Because of the existing requirement to modify the plan when substantive facility changes occur, the increased 5 year review will not decrease the accuracy and validity of the plan information. In addition, the 5 year cycle is consistent with certain state review cycles (e. g., Virginia's Oil Discharge Contingency Plan)." (2, 3, 4, 5, 7, 14, 17, 21, 22, 23, 26, 27, 28, 29, 30, 32, 34, 37, 38, 42, 43, 45, 46, 48, 49, 51, 52, 55, 57, 58, 59, 65, 66, 67, 68, 70, 74, 76, 79, 80, 82, 84, L1, L5).

Changes in technology. "Changes in the regulations or technology are not so rapid that a 3 year review period is required, especially for small facilities which have storage capacities of only several thousand gallons." (14)

Cost. Because his facility required few alterations and is already in compliance, "the need for a review is minimal at best." (4) "Implementation of the proposed five year review schedule would save time and money by reducing a facility's recordkeeping burden." (5)

Other amendments. "...( A) mendments to a facility's SPCC Plan are far more likely to be initiated due to changes in facility design, construction, operation, or maintenance than by periodic evaluation of the plan; the existing requirement to amend the plan following such changes, coupled with a periodic review at five year intervals, should therefore continue to provide adequate protection against discharges." (46)

Reduced recordkeeping. The proposal would reduce the record keeping burden for facilities subject to the rule while causing no additional harm to the environment because the SPCC plans must be amended when a change in 44 facility design or operation occurs. (10, 14, 17, 22, 27, 28, 32, 42, 46, 55, 74, 79, L1) "This action would alleviate an unnecessary burden for industry while concentrating the agency's efforts for the most environmental benefit. In many medium sized trucking facilities, one full time position is required to properly maintain environmental records, and for that reason we would urge the agency to finalize this change. " (42)

Response cycle coordination. Supports the proposed change because the five year review cycle could then be coordinated with other permits and response plans that are also on 5 year review cycles. (14, 28, 34, 74) "...( M) any facilities have both SPCC and OPA response plans. Having a five year renewal period for both of these related plans will make coordination between the plans much easier. As part of this same rulemaking, EPA is allowing the preparation of combined SPCC, OPA and/ or state response plans. Having a consistent renewal period between at least the SPCC and OPA plans will help this coordination effort." (74)

Tank warranties. "Most current tank manufacturers warranty their fuel storage tanks from 1 to 30 years with 20 years being the typical warranty. Therefore, the longevity of the warranty should probably be the determining factor on the frequency of review. If a site includes a tank with a one year warranty, it should be reviewed annually; if a site includes tanks( s) with a warranty of 30 years, the five year benchmark would appear to be a logical frequency." (73)

Opposition to proposal.

No benefit to operator. "... SPCC plans are revised almost yearly because as production decreases, the properties are sold or combined with other facilities. Lengthening the review period is no benefit to the operator." (8)

No changes. Questions "... the benefit to either the environment or public health to be gained by reviewing the SPCC Plan on any schedule for facilities where no changes are made, or are anticipated to be made, to "... facility design, construction, operation or maintenance..." that might affect its potential to discharge oil. Suggests that we should amend the rule to require periodic reviews only when such aforementioned changes are made. (2) Asks us to "... clarify whether the certification referenced in proposed Section 112.5 (b) addresses the circumstance in which a Plan is reviewed and evaluated but does not require revision. If the Plan is revised, it will be certified by a Professional Engineer pursuant to Section 112.3 (d) and a separate certification that the review and evaluation has taken place would be redundant. The final rule should avoid redundant certifications." (3) The proposed certification language is confusing. (3, 38, 47, 51, 60, 61, 65) 45 Personnel turnover. "If the EPA is serious about ensuring, and not just having something to hit O/ O over the head with if there is a spill, then the time frame for reviews should be shortened, not lengthened. Some of these guys aren't even at the same plant for two years or more." (40)

Reduced maintenance. "...( C) hanging the review period from 3 to 5 years may lower the level of facility `maintenance' of the SPCC plan. This is particularly true in the absence of any information about requirements for a facility to ensure personnel are familiar with planning goals and proposed response actions and to address personnel rotations." (72)

Completion of review.

Support for proposal. (46, 67, 84) "...( T) he proposal to require an owner or operator to certify completion of the review and evaluation in order to provide written proof that the operator has complied with the rule. We believe that prudent operators will document such reviews even without a specific requirement to do so, since it is difficult to prove compliance otherwise." (46)

Opposition to proposal. (8, 14, 30, 42, 80, L4, L5).

Negative declarations. "We recommend that regulations that require `negative declarations' or certifications of non applicability be eliminated. Such certifications are unnecessary record keeping and their absence from facility files may be considered non compliance." (L4)

No environmental benefit. "Our experience with the SPCC sent to the RA as the result of a spill is the RA staff is overwhelmed by the volume of work so there is not even an acknowledgment of the plan. A certificate sent to the RA will add to the paperwork burden and not improve environmental protection. Further, increasing the SPCC burden will cause small operators to discontinue preparing and updating plans, so the current working system will deteriorate." (8) Certification would only "... add another layer of paperwork to the plan that would do nothing to prevent or clean up contamination. A quick assessment of some of our member's practices indicates that the plans are dated as of each (currently) triennial review and during any updates to the plan that occur because of physical changes to the facility. The date indicates the last time the plan was reviewed for accuracy. ATA believes that this practice should suffice instead of a separate statement." (42) Certification would only add to the recordkeeping burden and would have no apparent positive effects on the environment. (30, 80, L5) 46 Unnecessary. Certification is unnecessary because "... the 5 year review will result in some modification or amendment of the SPCC Plan, and it will be apparent that a review and evaluation were made. Since the entire plan must be certified in accordance with 40 CFR 112.3( d), it is unnecessarily burdensome and redundant to certify the review and evaluation. The Agency may wish to recommend that a log sheet be added as an appendix to each plan to document the date of the five year review and evaluation and to record the names of the persons responsible for the review." (14)

Copy to RA. We should consider a requirement for a copy of the certification to be forwarded to the Regional Administrator. (84) We should not require a copy to the RA. (67)

PE certification instead. "...( C) ertification should not be required at the owner/ operator level (e. g., plant manager). Environmental engineers at our facilities review and update SPCC plans on a regular basis and maintain documentation of the reviews. GM believes that certification at this level is sufficient, as the facility level engineers are most familiar with the plans and are responsible for implementation." (51)

PE or company staff. Either company staff or a professional engineer should be allowed to perform certification. (3, 47, 61, 65) "( S) elf review would be adequate to determine if new features or changes have appeared in a facility which trigger revision of the Plan." (3) Requests confirmation to his understanding of the proposal. (38) Requests clarification regarding who is eligible to sign the proposed certification statement. Supports the idea that a responsible individual, other than a Professional Engineer, should be allowed to certify that a Plan has been reviewed and updated. (47, 51, 60, 61, 65)

Response: Support for proposal. We appreciate commenter support.

Completion of review. We disagree that documentation of completion of review has no environmental benefit. Its benefit lies in the fact that it shows that someone reviewed the Plan to determine if better technology would benefit the facility and the Plan is current. Documentation of completion of review is necessary whether or not any amendments are necessary in order to clearly show that the review was done. Mere dating of the Plan or of an amendment does not show that you performed the required review. Documentation of completion of review is a function of the owner or operator, whereas certification of any resulting technical amendment is a function of the PE. We disagree that documentation of completion should be forwarded to the Regional Administrator because it would increase the information collection burden without an environmental benefit. It is sufficient that the review be done. When the Regional 47 Administrator wishes to verify completion of review, he may do so during an on site inspection.

Calculation of time between reviews. The change in the rule from three year to fiveyear reviews requires some explanation as to when a review must be conducted. For example, a facility became subject to the rule on January 1, 1990. The first three year review should have been conducted by January 1, 1993, the second by January 1, 1996, and the third by January 1, 1999. The next review must be conducted by January 1, 2004, due to the rule change. In other words, an existing facility must complete the review within 5 years of the date the last review must have been completed. A facility becoming operable on or after the effective date of the rule will begin a five year cycle at the date it becomes subject to part 112.

Editorial change. We have changed the word "certification" to a requirement to document completion of the review to avoid the legal effect a certification may have. The intent of the certification proposal was merely to show that an owner or operator performed a review of the Plan every five years. 62 FR 63814, December 2, 1997. A false documentation of completion of review of the Plan is a deficiency in the Plan and may be cited as a violation of these rules.

Five year review. We agree that a five year review period will make coordination of review of related plans, such as facility response plans required by part 112, easier. We disagree that a five year review period will lead to reduced maintenance or increased environmental harm. Amendment of a Plan will still be necessary when a material change is made affecting the facility's potential to discharge oil, perhaps after certain discharges as required by the RA under §112.4( a), and perhaps after on site review of a Plan (see §112.4( d)). Plus the Plan must be implemented at all times. These opportunities ensure that Plans will be current. We also disagree that the length of the tank warranty should be the determining factor for a technological review. Technology changes enough within a five year period to warrant required review within such time period whether or not other changes occur. Amendments other than the fiveyear review amendments may not be based on the need to learn of improved technology. Those amendments might result from deficiencies in the Plan, on the need to make repairs, or to remedy the cause of a discharge.

Changes of personnel Changes of personnel at a facility do not affect the responsibility to perform the requirements of this section.

How to document completion of review. You must add documentation of completion of review either at the beginning or the end of the Plan, or maintain such documentation in a log book appended to the Plan or other appendix to the Plan. You may document completion in one of two ways. If amendment of the Plan is necessary, then you must state as much, and that review is complete. This statement is necessary because Plan 48 amendments may result either from five year review or from material changes at the facility affecting its potential for discharge, or from on site review of the Plan. There is no way to know which circumstance causes the amendment without some explanation. If no amendments are necessary, you must document completion of review by merely signing a statement that you have completed the review and no amendments are necessary. You may use the words suggested in the rule to document completion, or make any similar statement to the same effect.

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

Who documents review. The owner or operator of the facility, or a person at a management level with sufficient authority to commit the necessary resources, must document completion of review. 49 8. Use of Business Records  §§ 112.7( e), 112.8( c)( 3)( iv), and 112.9( b)( 1)

Background: In 1997, we proposed to amend §112.7( e)( 8) (redesignated as §112.7( e) in the final rule) to provide that records of inspections maintained pursuant to usual and customary business practices would suffice for purposes of the rule. We also proposed to amend two particular sections (current §§ 112.7( e)( 2)( iii)( D) and 112.7( e)( 2)( vi). These written procedures and a record of inspections, signed by the appropriate supervisor or inspector, must be maintained for three years.

Section 112.7( e)( 2)( vi) of the current rule (redesignated as §112.8( c)( 6) of the final rule) requires periodic integrity testing of aboveground tanks, taking into account tank design and using such techniques as hydrostatic testing, visual inspection, or a system of non destructive shell thickness testing. It also requires the maintenance of comparison records. In 1997, we proposed to amend §112.7( e)( 2)( vi) to provide that usual and customary business records would suffice to meet the record keeping requirements of the section.

Current §112.7( e)( 1) authorizes the drainage of rainwater from a diked area into a storm drain or an effluent discharge that empties into an open water course, lake, or pond, and bypasses the in plant treatment system if four conditions are met (see §112.7( e)( 1)( i)( iv)). In 1997, we proposed to amend §112.7( e)( 2)( iii)( D) (redesignated in the new rule as §112.8( c)( 3)) to allow the use of records recording stormwater bypass events kept under a National Pollutant Discharge Elimination System (NPDES) permit. In the NPDES regulations, "bypass" is defined to mean the "intentional diversion of waste streams from any portion of a treatment facility" (40 CFR 122.41( m)( 1)( I)).

The NPDES regulations set forth conditions that all NPDES permits must contain (40 CFR 122.21). One of these "standard conditions" allows for excusable bypasses under certain conditions (40 CFR 122.41( m)( 2)( 4)). Specifically, 40 CFR 122.41( m)( 3) and 40 CFR 122.41( j)( 2) require that the NPDES permittee provide notice of the bypass event and maintain records of all such bypass events for at least three years from the date of report, respectively. These NPDES permit conditions for notification and record keeping serve the same objective as the SPCC rule requirement in §112.3( c)( 3), and the documentation is therefore acceptable to satisfy the SPCC requirement.