certified SPCC Plan or a self-certified SPCC Plan according to all of
the requirements of Sec.  112.6(b) in order to comply with the
requirements under 40 CFR part 112. In other words, if a Tier I
qualified facility owner/operator chooses not to use the Plan template
in Appendix G, he would then be required to comply with the Tier II
qualified facility requirements in Sec.  112.6(b). Any owner or
operator of a qualified facility may also choose to prepare a full PE-
certified Plan instead of a self-certified one.
    The Agency believes that proposing a simpler, less costly
compliance option for these smaller, less complex facilities will
improve overall compliance with the SPCC regulation resulting in
enhanced environmental protection. EPA seeks comments on whether the
proposed streamlined set of rule provisions for Tier I qualified
facilities addresses the concerns of owners and operators of facilities
with relatively smaller volumes of oil and simpler configurations,
while maintaining the environmental protection intended by the
regulation. Any suggestions for alternative approaches and whether
additional provisions should be included or excluded from the template
must include an appropriate rationale and supporting data in order for
the Agency to be able to consider it for final action.
3. SPCC Plan Template
    The proposed SPCC Plan template for Tier I qualified facilities is
found at Appendix G in this proposed rule. To facilitate the
development of SPCC Plans at Tier I qualified facilities, EPA would
also make the Plan template available on its Web site, http://www.epa.gov/emergencies.
 Once completed and certified by the owner or

operator, the Plan template would serve as the SPCC Plan for the
facility. As for any facility subject to the SPCC rule, the owner or
operator must maintain a written copy of the Plan--which in this case
would be the completed and certified SPCC Plan template--at the
facility or at the nearest field office if the facility is attended
less than four hours per day (Sec.  112.3(e)).
a. SPCC Plan Template Format
    The proposed template in Appendix G consists of a simple form,
where the facility owner/operator can confirm that that the facility
meets the rule requirements by marking the appropriate checkboxes. In
other sections, the owner or operator would enter the relevant
information in a summary table, or describe the equipment or procedures
implemented at the facility to meet the requirements. Specifically,
detailed descriptions would be provided for: (1) The inspection/testing
program used for all aboveground storage containers and piping; (2)
security measures (except for oil production facilities); (3) immediate
actions to be taken in the event of a reportable discharge (i.e., a
discharge to navigable waters or adjoining shorelines); (4) procedures
for preventing overfills from each oil storage container; and (5) the
flowline/intra-facility gathering line maintenance program (for oil
production facilities).
    The proposed template also includes attachments with various tables
that the owner or operator may use to record compliance activities,
such as periodic Plan reviews, equipment inspections, personnel
training, and discharge notifications. Records of inspections and tests
kept under usual and customary business practices also would suffice.
An owner or operator may insert additional pages to his Plan to provide
more detailed descriptions of equipment or procedures than allowed in
the space provided in the template, and provide the appropriate
reference in the relevant template field.
    At a minimum, an owner or operator would be required to fill out
all applicable portions of the Plan template. EPA would expect an owner
or operator to complete all fields in the general portion of the
template (Sections I and II, and III.1 through III.8), and the specific
portion of the template that applies to their facility type (A, B, or C
of Section III).
    The first part of the proposed Plan template contains summary
information about the facility. Section I contains the self-
certification statement that must be signed by the owner or operator.
By signing this statement, the facility owner or operator preparing the
Plan would commit to implementing the measures described in the Plan.
In Section II, the owner or operator acknowledges the requirements to
review and amend the Plan, and Plan reviews and amendments can be
recorded in Attachment 2 to the Plan template. Section III consists of
the requirements that apply to all facility types and include, in
order: (1) Oil Storage Containers; (2) Secondary Containment and Oil
Spill Control; (3) Inspections, Testing, Recordkeeping, and Personnel
Training; (4) Security (excluding oil production facilities); (5)
Emergency Procedures and Notifications; (6) Contact List; (7) NRC
Notification Procedure; and (8) SPCC Spill Reporting Requirements.
    The owner or operator must also complete one of the Sections
labeled A through C, according to the type of facility, as follows:
Section A in the case of an onshore facility (excluding production)
such as a farm; Section B in the case of an onshore oil production
facility; and Section C in the case of an onshore oil drilling and
workover facility. The Agency did not include requirements for offshore
oil drilling, production or workover facilities in the template because
EPA is not aware of any offshore drilling, production or workover
facility that would meet the Tier I qualification criteria.
    EPA believes that this simplified approach to developing an SPCC
Plan for Tier I qualified facilities is responsive to the concerns
expressed by small businesses and the SBA Office of Advocacy, and is
consistent with the characteristics of these facilities having a
limited number of oil storage containers, smaller overall oil storage
capacities, simple configurations, fewer oil transfers, and often have
no further distribution of oil.
    The Agency seeks comments on whether the proposed SPCC Plan
template in Appendix G for Tier I qualified facilities addresses the
concerns of owners and operators of facilities with relatively smaller
volumes of oil, while maintaining the environmental protection intended
by the regulation. The Agency also seeks comments on the clarity and
ease-of-use of the Plan template.
b. Environmental Equivalence and Impracticability Determinations
    Use of the Appendix G template would be limited to those facilities
that do not use environmentally equivalent measures under Sec.
112.7(a)(2) and that do not determine secondary containment to be
impracticable as per Sec.  112.7(d). An owner or operator of a Tier I
qualified facility who wants to use such deviations may choose to
prepare and implement a self-certified Plan in accordance with the Tier
II qualified facility requirements in Sec.  112.6(b) and can then have
a licensed PE review and certify those portions of the SPCC Plan that
provide for alternate measures to be implemented at the facility.
However, these facilities would not be able to use the template in
Appendix G to comply with the SPCC rule because Tier II facilities have
additional SPCC requirements that are not included in the Plan
template. Tier I qualified facilities may also choose to prepare and
implement a PE-certified Plan in accordance with the full set of
applicable requirements in Sec.  112.7 and subparts B and C of the
rule.

4. Self-Certification and Plan Amendments
    The elements of the Tier I self-certification requirement currently
being proposed are similar in scope to those required for an owner or
operator of a qualified facility who chooses to self-certify a Plan (as
promulgated in December 2006, 71 FR 77266). An owner or operator of a
Tier I qualified facility who chooses to complete an Appendix G
template Plan would be required to certify that: (1) He is familiar
with the applicable requirements of the SPCC rule; (2) he has visited
and examined the facility; (3) the Plan has been prepared in accordance
with accepted and sound industry practices and standards; (4)
procedures for required inspections and testing have been established
in accordance with industry inspection and testing standards and
recommended practices; (5) the Plan is being fully implemented; (6) the
facility meets the qualification criteria set forth under Sec.
112.3(g)(1); (7) the Plan does not utilize the environmental
equivalence or impracticability provisions under Sec.  112.7(a)(2) and
112.7(d); and (8) the Plan and the individual(s) responsible for
implementing the Plan have the full approval of management and the
facility owner or operator has committed the necessary resources to
fully implement the Plan.
    The template also includes a section that acknowledges the owner/
operators' obligation to report oil discharges; review and amend the
SPCC Plan; prepare an oil spill contingency plan and provide a written
commitment of resources for qualified oil-filled operational equipment
(in lieu of secondary containment) or for flowlines and intra-facility
gathering lines at oil production facilities; implement the Plan; and
certify that the information in the Plan is true.
    Under Sec.  112.5 of the SPCC rule, an owner or operator must
review and amend the SPCC Plan following any change in facility design,
construction, operation, or maintenance that materially affects its
potential for a discharge as described in Sec.  112.1(b). Consistent
with the current requirement for qualified facilities, the owner or
operator of a Tier I qualified facility would be allowed to self-
certify any of these technical amendments to the Plan under Sec.
112.6(a)(2), and document this certification in the Plan template.
    If the owner or operator of a Tier I qualified facility makes
changes to the facility such that the maximum individual oil storage
container capacity is greater than 5,000 U.S. gallons, the facility no
longer qualifies as a Tier I facility and is not eligible to implement
the self-certified SPCC Plan template. The facility owner or operator
must determine whether the facility still meets the eligibility
criteria for a Tier II qualified facility (i.e., total aboveground
storage capacity remains below 10,000 gallons). If the facility meets
the Tier II qualified facility criteria, the owner/operator would be
required to, within six months following the change in the facility,
prepare and implement a Plan in accordance with the proposed Sec.
112.6(b) or prepare and implement a Plan in accordance with the general
Plan requirements in Sec.  112.7, and the applicable requirements in
subparts B and C, including having the Plan certified by a PE, as
required under Sec.  112.3(d). If, on the other hand, the facility is
no longer a qualified facility, the owner/operator would be required
to, within six months following the change in the facility, prepare and
implement a Plan in accordance with the general Plan requirements in
Sec.  112.7, and applicable requirements in subparts B and C.
    The Agency seeks comments on the appropriateness of these self-
certification elements and Plan amendment requirements, and on whether
there are other requirements that should be included. Any suggestions
for differentiation for the template must include an appropriate
rationale and supporting data in order for the Agency to be able to
consider it for a final action.
5. Tier II Qualified Facility Requirements
    EPA proposes to designate qualified facilities that do not meet the
additional criterion for Tier I qualified facilities (i.e., no
individual oil storage container with a capacity greater than 5,000
U.S. gallons) as Tier II qualified facilities. Although EPA is
proposing changes to the organization of the regulatory text in Sec.
112.6 in order to accommodate the tiered approach, the requirements for
Tier II qualified facilities remain the same as they were finalized in
December 2006 (71 FR 77266). Tier II qualified facilities may choose to
comply with the requirements in proposed Sec.  112.6(b) by completing
and implementing a self-certified SPCC Plan, in lieu of having a PE-
certified Plan. The self-certified SPCC Plan must comply with all of
the applicable requirements of section Sec.  112.7 and subparts B and C
of the rule. The following table illustrates the tiers, criteria and
options for qualified facilities and all others as described in this
notice:

------------------------------------------------------------------------
               Qualified facilities
--------------------------------------------------- All other facilities
           Tier I                    Tier II
------------------------------------------------------------------------
If the facility has 10,000    If the facility has   If the facility has
 gallons or less in            10,000 gallons or     greater than 10,000
 aggregate aboveground oil     less in aggregate     gallons in
 storage capacity; and         aboveground oil       aggregate
                               storage capacity;     aboveground oil
                               and                   storage capacity,
                                                     or
If the facility has not had   If the facility has   If the facility has
 (1) a single discharge of     not had (1) a         had (1) a single
 oil to navigable waters       single discharge of   discharge of oil to
 exceeding 1,000 U.S.          oil to navigable      navigable waters
 gallons, or (2) two           waters exceeding      exceeding 1,000
 discharges of oil to          1,000 U.S. gallons,   U.S. gallons, or
 navigable waters each         or (2) two            (2) two discharges
 exceeding 42 U.S. gallons     discharges of oil     of oil to navigable
 within any twelve-month       to navigable waters   waters each
 period, in the three years    each exceeding 42     exceeding 42 U.S.
 prior to the SPCC Plan        U.S. gallons within   gallons within any
 certification date, or        any twelve-month      twelve-month
 since becoming subject to     period, in the        period, in the
 the SPCC rule if facility     three years prior     three years prior
 has been in operation for     to the SPCC Plan      to the SPCC Plan
 less than three years; and    certification date,   certification date,
                               or since becoming     or since becoming
                               subject to the SPCC   subject to the SPCC
                               rule if facility      rule if facility
                               has been in           has been in
                               operation for less    operation for less
                               than three years;     than three years;
                                                     or
If the facility has no                              If the owner/
 individual oil containers                           operator is
 greater than 5,000 gallons;                         eligible for
                                                     qualified facility
                                                     status, but decides
                                                     not to take the
                                                     option;

Then: The facility may        Then: The facility    Then: The facility
 complete and self-certify     may prepare a self-   must prepare a PE-
 an SPCC Plan template         certified SPCC Plan   certified SPCC Plan
 (proposed as Appendix G to    in accordance with    in accordance with
 40 CFR part 112) in lieu of   all of the            all of the
 a full SPCC Plan reviewed     applicable            applicable
 and certified by a            requirements of       requirements of
 Professional Engineer (PE)    Sec.   112.7 and      Sec.   112.7 and
                               subparts B and C of   subparts B and C.
                               the rule, instead
                               of one reviewed and
                               certified by a
                               Professional
                               Engineer (PE)
------------------------------------------------------------------------

    It is important to note that Tier II qualified facilities would not
be able to use the Appendix G template because it does not include all
of the SPCC requirements that may apply for these facilities.
    EPA is also proposing to remove the streamlined security and
integrity testing requirements for qualified facilities. Under this
proposal, the flexibility already available for qualified facilities
would be extended to all facilities, so these requirements would be
redundant.
6. Alternative Options Considered
    In developing the amendments proposed in this notice, EPA
considered the following alternatives for streamlining requirements for
a subset of qualified facilities:
a. Exemption From SPCC Regulation
    Under this option, EPA would exempt a certain subset of qualified
facilities from the SPCC requirements altogether, based on a lower
facility storage capacity threshold (e.g., 5,000 U.S. gallons). The
exemption of Tier I qualified facilities from the SPCC regulation would
significantly reduce the number of facilities subject to the SPCC
requirements. This regulatory alternative would also simplify the
applicability of the rule for qualified facilities. However, there is
no rationale or basis for exempting Tier I qualified facilities
completely from the SPCC rule. Furthermore, there are no data to
support setting a facility capacity threshold lower than the current
10,000-gallon capacity threshold for qualified facilities.
b. Tier I Eligibility Criteria Based on Total Facility Storage Capacity
    Under this option, EPA would determine the eligibility for Tier I
qualified facilities by establishing a lower facility storage capacity
threshold, such as 5,000 U.S. gallons. This action mirrors SBA's
approach in its multi-tiered structure proposal (submitted as a public
comment in response to the 2005 SPCC notice of proposed rulemaking,
OPA-2005-0001-0120). One advantage of this option is its simplicity,
since a facility owner or operator--once he determines that the
facility is ``qualified'' according to the criteria promulgated in
December 2006--would need only to consider the aggregate storage
capacity to determine if the Tier I option is available.
    However, there are no data to support setting a total facility
capacity threshold for a subset of qualified facilities to establish a
lower tier of differentiated requirements. Furthermore, no strong
rationale exists to support some areas for differentiation in the
template, based on a 5,000-gallon total facility storage capacity
threshold alone. EPA's preferred option ties the container capacity
threshold to existing differentiation in the STI SP001 standard for
container inspections. Additionally, a lower tier at the 5,000-gallon
threshold capacity may complicate applicability of the relief for
facilities with fluctuating oil storage capacity.
    The Agency seeks comments on these alternative options. Any
suggestions for additional alternatives must include an appropriate
rationale and supporting data in order for the Agency to be able to
consider it for final action.

H. General Secondary Containment

    At a facility subject to the SPCC rule, all areas with the
potential for a discharge as described in Sec.  112.1(b) are subject to
the general secondary containment provision, Sec.  112.7(c). These
areas may have loading/unloading areas (also referred to as transfer
areas), piping, and/or mobile refuelers, and may include other areas of
a facility where oil is present. The general secondary containment
requirement requires that these areas be designed with appropriate
containment and/or diversionary structures to prevent a discharge of
oil in quantities that may be harmful (i.e., as described in 40 CFR
part 110 into or upon navigable waters of the United States or
adjoining shorelines; see Sec.  112.1(b)). EPA clarified in the SPCC
Guidance for Regional Inspectors (version 1.0, November 28, 2005) that
``appropriate containment'' should be designed to address the most
likely discharge from the primary containment system, such that the
discharge will not escape containment before cleanup occurs. With this
proposed revision, EPA seeks to provide clarity consistent with the
explanation found in the guidance document regarding the method,
design, and capacity of secondary containment as required under Sec.
112.7(c).
    Furthermore, Sec.  112.7(c)(1) and (2) list several example methods
for providing secondary containment. These methods are examples only;
other containment methods may be used, consistent with good engineering
practice. To provide clarity for the regulated community, EPA is
proposing to expand the list of examples of secondary containment
methods for onshore facilities. By expanding this list of examples, EPA
intends to include some additional prevention systems commonly used at
facilities.
1. Proposed Revisions to the General Secondary Containment Requirement
a. Containment Method, Design, and Capacity
    EPA proposes to clarify the general secondary containment
requirement at Sec.  112.7(c) by adding the text ``In determining the
method, design, and capacity for secondary containment, you need only
to address the typical failure mode, and the most likely quantity of
oil that would be discharged. Secondary containment may be either
active or passive in design.''
    In the SPCC rule, the general secondary containment provision is
complemented by various specific secondary containment requirements
(e.g., Sec. Sec.  112.7(h)(1), 112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
112.12(c)(2), 112.12(c)(11)) which address the potential for oil
discharges from specific parts of a facility where oil is stored or
handled, such as at a bulk storage container or a loading/unloading
rack. These specific secondary containment requirements address the
design, sizing and freeboard capacity to account for a major container
failure. In contrast, the general secondary containment provision is
intended to address the most likely oil discharge from any part of a
facility. Therefore, in determining how to provide appropriate general

secondary containment, a facility owner or operator would consider the
typical failure mode and most likely quantity of oil that would be
discharged. Based on these site-specific conditions, the owner or
operator can determine what capacity of secondary containment is
needed, and design the containment method accordingly. The most likely
quantity of oil discharged is not often expected to be the maximum
capacity of the container.
    For example, at a regulated transfer area where a truck loads fuel
into an oil tank, the owner or operator may determine that the
reasonably expected source and cause of a discharge would be a ruptured
hose connection, and that a shutoff valve is present and accessible to
the attendant. To determine the most likely quantity of oil that would
be discharged, the oil's rate of flow and the amount of time it would
take for the attendant to close the valve need to be considered, in
accordance with good engineering practice. Depending on the likely
quantity of oil that would be discharged, the owner/operator may
determine that the appropriate method of secondary containment is a
passive containment measure, such as curbing around the area, or, if
the likely quantity of oil is reasonably handled by spill kits, then
such an active method of containment may be used.
    Under this proposal, EPA would further amend Sec.  112.7(c) to make
it clear that the requirement allows for the use of both active and
passive secondary containment measures to prevent a discharge to
navigable waters or adjoining shorelines. Active containment measures
are those that require deployment or other specific action by the
operator. These measures may be deployed either before an activity
involving the handling of oil starts, or in reaction to a discharge, so
long as the active measure is designed to prevent an oil discharge from
reaching navigable waters or adjoining shorelines. Active measures are
also referred to as spill countermeasures. In contrast, passive
measures are installations that do not require deployment or action by
the operator.
    The SPCC Guidance for Regional Inspectors (Version 1.0, November
28, 2005) provides several examples of the use of active measures at an
SPCC-regulated facility. The efficacy of active containment measures to
prevent a discharge depends on their technical effectiveness (e.g.,
mode of operation, absorption rate), placement and quantity, and timely
deployment prior to or following a discharge. For discharges that occur
only during attended activities, such as those occurring during
transfers, an active measure (e.g., sock, mat, or other portable
barrier, or land-based response capability) may be appropriate,
provided that the measure is capable of containing the oil discharge
volume and rate, and is timely and properly constructed/deployed.
    The general secondary containment approach implemented at a
facility need not be ``one size fits all.'' Different approaches may be
taken for the same activity at a given facility, depending on the
material and location. For example, the SPCC Plan may specify that
drain covers and sorbent material be pre-deployed prior to transfers of
low viscosity oils in certain areas of a facility located in close
proximity to navigable waters/adjoining shorelines or drainage
structures. For other areas and/or other products (e.g., highly viscous
oils), the Plan may specify that sufficient spill response capability
is available for use in the event of a discharge, so long as personnel
and equipment are available at the facility and these measures can be
effectively implemented in a timely manner to prevent oil from reaching
navigable waters and adjoining shorelines.
    Whatever method is used, the owner or operator must document in the
SPCC Plan the rationale for each containment method (i.e., how the use
of the measure is appropriate to the situation). The SPCC Plan must
also describe the procedures to be used to deploy any active measures
and explain the methods for discharge discovery that will be used to
determine when deployment of the active measure is appropriate (Sec.
112.7(a)(3)(iii)).
    EPA requests comments on the appropriateness of the proposed
language for the general secondary containment provision to provide
clarity regarding the method, design, and capacity of secondary
containment as required under Sec.  112.7(c), consistent with current
Agency guidance. Any suggestions for alternative approaches must
include an appropriate rationale in order for the Agency to be able to
consider it for final action.
b. List of Secondary Containment Methods for Onshore Facilities
    EPA also proposes to amend the general secondary containment
provision at Sec.  112.7(c)(1) to include the following additional
example prevention systems for onshore facilities: Drip pans, sumps,
and collection systems. Drip pans are typically used to isolate and
contain small drips or leaks until the source of the leak is repaired.
They are commonly used with product dispensing containers (such as
drums), uncoupling of hoses during bulk transfer operations, and for
pumps, valves, and fittings. Sumps and collection systems generally
involve a permanent pit or reservoir and the troughs/trenches connected
to it that collect oil.
    By expanding the list of example secondary containment methods
found in Sec.  112.7(c)(1), EPA intends to increase the clarity and
better represent current prevention practices. EPA emphasizes that the
list of prevention systems are examples only; other containment methods
may be used, consistent with good engineering practice.
    EPA requests comments on the appropriateness of amending the
general secondary containment provision to expand the list of example
secondary containment methods found in Sec.  112.7(c)(1). Any
suggestions for alternative approaches must include an appropriate
rationale in order for the Agency to be able to consider it for final
action.
2. Alternative Option Considered: No Action
    EPA considered taking no regulatory action regarding this issue.
The current regulatory language currently allows for the facility
owner/operator to design secondary containment based on a typical
failure mode and likely quantity discharged. However, EPA believes that
modifying the general secondary containment language at Sec.  112.7(c)
is appropriate to more clearly illustrate the flexibility already
contained in the rule, as described in the guidance document.
3. General Secondary Containment for Non-Transportation-Related Tank
Trucks
    In the December 2006 amendments to the SPCC rule (71 FR 77266,
December 26, 2006), EPA exempted mobile refuelers from the sized
secondary containment requirements applicable to bulk storage
containers. In the amended regulation, EPA defined a mobile refueler as
``a bulk storage container onboard a vehicle or towed, that is designed
or used solely to store and transport fuel for transfer into or from an
aircraft, motor vehicle, locomotive, vessel, ground service equipment,
or other oil storage container.'' (See Sec.  112.2). EPA recognizes
that non-transportation-related tanker trucks may operate similarly to
mobile refuelers, though not specifically transferring fuel. Therefore,
they may have the same difficulty in complying with the sized secondary
containment requirements. EPA requests comment on whether the
regulatory relief provided to mobile refuelers in 2006 (i.e., an
exemption

from the sized secondary containment requirements) should be extended
to non-transportation-related tank trucks at a facility subject to the
SPCC rule. Such tank trucks include those used to store for short
periods of time and transport fuel, crude oil, condensate, non-
petroleum, or other oils for transfer to or from bulk storage
containers, e.g., a truck used to refill oil-filled equipment at an
electrical substation or a pump truck at an oil production facility.
Under this approach, the general secondary containment requirements at
Sec.  112.7(c) would still apply. This approach is also consistent with
the general secondary containment requirements that are already
applicable at the SPCC facility that the tank truck is visiting, and
would simplify compliance for the facility. However, this exemption to
sized secondary containment would not apply to a vehicle used primarily
for the bulk storage of oil in a stationary location, in place of a
fixed oil storage container.

I. Security

    In December 2005 (70 FR 73524, December 12, 2005), EPA proposed to
allow the owner and operator of a qualified facility to comply with a
set of streamlined facility security requirements (finalized in
December 2006 at 71 FR 77266). In the preamble to that proposal, EPA
recognized that there is no one single approach to ensure proper
facility security. For example, the security requirements for fencing
and lighting may not always be appropriate for sites such as a
national, state, or local park subject to the SPCC requirements, where
the site layout may be too extensive to fence, and where the lighting
of a solitary container would invite, rather than deter, would-be
intruders. EPA has received comments from the regulated community
suggesting that the security requirements should be revised for all
regulated facilities, for reasons consistent with those for a qualified
facility. EPA agrees that, even for a facility that is not a qualified
facility, it may not be appropriate to provide fencing around the
entire perimeter, and that lighting requirements in remote areas may
attract, rather than deter, vandals. Additionally, many oil storage
sites at farms, parks, and similarly isolated facilities have no
electricity, which makes compliance with the lighting requirement
difficult. In other cases, oil storage sites, such as those at farms,
may be located where an owner or operator is present around the clock.
Furthermore, due to the increased focus on security requirements by the
Department of Homeland Security (DHS) and other regulatory agencies to
which a facility subject to the SPCC rule may also be subject, EPA
believes that it is important to provide flexibility in complying with
the security requirements to allow an owner/operator of a facility to
customize a security program. By revising the facility security
requirements to make them more performance-based, EPA expects to
improve compliance rates, thereby enhancing environmental protection.
1. Proposed Revisions to the Security Requirements
    The application of the SPCC security measures is often determined
by the facility's geographical/spatial factors and there is no ``one-
size-fits-all'' answer to this requirement. Therefore, EPA is proposing
to modify the security requirements at Sec.  112.7(g) to make them
consistent with the streamlined, performance-based requirements
currently found at Sec.  112.6(c)(3)(ii) for qualified facilities.
Because the proposed revised requirements at Sec.  112.7(g) would apply
to all facilities (excluding oil production facilities), EPA proposes
to remove Sec.  112.6(c)(3), as it would be redundant.
    This proposal would allow an owner or operator to describe in his
SPCC Plan how he will:
     Secure and control access to all oil handling, processing
and storage areas;
     Secure master flow and drain valves;
     Prevent unauthorized access to starter controls on oil
pumps;
     Secure out-of-service and loading/unloading connections of
oil pipelines; and
     Address the appropriateness of security lighting to both
prevent acts of vandalism and assist in the discovery of oil
discharges.
    A facility owner and operator would be required to document in his
SPCC Plan how these security measures are implemented.
    These proposed requirements would replace the more prescriptive
fencing and other requirements, currently found in Sec.  112.7(g)(1)
through (5), and would allow the facility owner/operator to determine
how best to secure and control access to areas where a discharge to
navigable waters or adjoining shorelines may originate. With this
proposed rule revision, EPA would also allow the facility owner/
operator to determine how lighting can be used to deter intruders and
to assist in the discovery of oil discharges, or whether there is a
more appropriate, site-specific method. EPA believes that this proposed
amendment would likely eliminate the need for PE-certified
environmentally equivalent alternatives to the specified security
requirements, because the proposed provision would already provide the
flexibility for the owner/operator to provide whatever measures are
most appropriate for the facility, as long as they accomplish the
stated security goal.
    EPA requests comments on the appropriateness of extending the
streamlined security requirements already available to qualified
facilities to all facilities regulated by the SPCC rule. Any
suggestions for alternative approaches must include an appropriate
rationale and supporting data in order for the Agency to be able to
consider it for final action.
2. Alternative Option Considered: No Action
    EPA considered taking no regulatory action regarding this issue. A
facility owner or operator could continue to use alternate measures in
lieu of the more prescriptive requirements currently found at Sec.
112.7(g), with a PE-certified explanation of how the alternate measures
are environmentally equivalent. However, EPA believes that modifying
the security requirements at Sec.  112.7(g) to make them consistent
with the streamlined, performance-based requirements currently provided
for qualified facilities is appropriate. Therefore, EPA chose not to
propose this ``no action'' option.

J. Integrity Testing

    In December 2006, EPA promulgated an amendment (71 FR 77266,
December 26, 2006) allowing the owner or operator of a qualified
facility to comply with streamlined integrity testing requirements.
This amendment allowed the owner or operator of a qualified facility to
consult and rely on industry standards to determine appropriate
qualifications for inspectors/testing personnel and the appropriate
integrity testing method for a particular container based on size,
configuration, and design, without the need for a PE-certified
explanation for this environmentally equivalent deviation from the
existing rule requirements at Sec.  112.8(c)(6) or Sec.  112.12(c)(6).
In the preamble to the proposal for this amendment (70 FR 73524,
December 12, 2005), EPA recognized that a facility owner or operator
could rely on the appropriate use of industry standards for integrity
testing requirements, and that in certain site-specific circumstances,
visual inspection may be appropriate and sufficient for compliance with
the integrity testing requirement. EPA has received comments from the
regulated

community suggesting that the integrity testing requirements
promulgated for qualified facilities should be extended to all
regulated facilities, for reasons consistent with those for a qualified
facility.
    EPA believes that owners or operators of all types of facilities
subject to either Sec.  112.8(c)(6) or Sec.  112.12(c)(6) would select
particular testing methods to comply with these requirements based on
industry inspection standards such as the Steel Tank Institute (STI)
SP001 (Standard for Inspection of Aboveground Storage Tanks) and
American Petroleum Institute (API) Standard 653 (Tank Inspection,
Repair, Alteration, and Reconstruction). For containers that meet
certain characteristics, industry standards may not require both visual
inspection and another system of non-destructive shell testing, as is
currently required in Sec. Sec.  112.8(c)(6) and 112.12(c)(6).
    For example, a facility may store oil in a mobile or portable
container, such as a 55-gallon drum. Under the current requirements at
Sec. Sec.  112.8(c)(6) and 112.12(c)(6), drums are required to be
visually inspected and are also subject to a non-destructive testing
method on a regular schedule. Alternatively, a Professional Engineer
may determine an environmentally equivalent measure, in accordance with
Sec.  112.7(a)(2). However, STI's SP001 standard specifies that the
minimum inspection requirement for portable containers, such as drums,
is visual inspection by the owner/operator unless no secondary
containment is provided. Therefore, under this proposal to revise the
integrity testing requirement, for portable containers provided with
secondary containment, periodic visual inspection only by the owner/
operator can be sufficient under Sec. Sec.  112.8(c)(6) and
112.12(c)(6). For portable containers without secondary containment,
the owner/operator must follow the requisite DOT leak testing and
recertification requirements as outlined in 49 CFR 173.28 (reuse,
reconditioning and remanufacturing of packaging), 49 CFR 178.803
(testing and certification of intermediate bulk containers (IBCs)), and
49 CFR 180.605 (or equivalent for portable container testing and
recertification). Currently, an owner/operator of a non-qualified
facility would need a PE to review and certify sections of his SPCC
Plan demonstrating that such inspection procedures, which are based on
provisions in the STI SP001 standard, are environmentally equivalent to
Sec.  112.8(c)(6) or Sec.  112.12(c)(6), even if the owner or operator
chooses to adopt inspection requirements directly from the industry
standard.
    Rather than require a PE-certified explanation of environmental
equivalence every time a facility owner or operator chooses to base
their integrity testing program on an industry standard instead of the
more stringent requirements in Sec.  112.8(c)(6) or Sec.  112.12(c)(6),
EPA is proposing to amend Sec. Sec.  112.8(c)(6) and 112.12(c)(6) to
replace these provisions with the more flexible language already
provided for qualified facilities at Sec.  112.6(c)(4)(ii).
1. Proposed Amendments to Integrity Testing Requirements
    EPA proposes to replace the current regulatory requirements at
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) with the regulatory
requirements currently found at Sec.  112.6(c)(4)(ii). EPA believes
that any SPCC facility owner or operator subject to Sec.  112.8(c)(6)
or Sec.  112.12(c)(6) should be allowed the increased flexibility
offered by the inspection requirements at Sec.  112.6(c)(4)(ii) (and
corresponding reduction in burden associated with developing
environmental equivalence determinations), particularly for portable
containers. Because the proposed revised requirements at Sec. Sec.
112.8(c)(6) and 112.12(c)(6) would apply to all facilities (excluding
oil production facilities), EPA is proposing to remove Sec.
112.6(c)(4), as it would be redundant.
    This proposal requires a facility owner or operator to:
     Test/inspect each aboveground container for integrity on a
regular schedule and whenever material repairs are made.
     Determine, in accordance with industry standards, the
appropriate qualifications of personnel performing tests and
inspections, the frequency and type of testing and inspections, which
take into account container size, configuration, and design.
    These provisions allow an owner/operator to adopt inspection
requirements outlined in industry standards without the need for
environmental equivalence determinations to be certified by a PE. The
revised provision would continue to require an owner/operator to keep
comparison records (records of inspections and tests kept under usual
and customary business practices will suffice) and to inspect the
container's supports and foundations. The owner or operator would also
be required to conduct frequent inspection of the outside of the
container for signs of deterioration, discharges, or accumulation of
oil inside diked areas.
    It is important to note that, under this proposal, a facility owner
or operator may still deviate from the proposed rule provision, or from
an industry standard, if the alternate measure is equivalent to the
environmental protections provided by the rule requirement (as provided
in Sec.  112.7(a)(2)). In this case, a PE would need to certify the
reason for the deviation and that the alternate measures are
environmentally equivalent.
    EPA requests comments on the appropriateness of extending the
streamlined integrity testing requirements already available to
qualified facilities to all facilities subject to Sec.  112.8(c)(6) or
Sec.  112.12(c)(6). Any suggestions for alternative approaches must
include an appropriate rationale and supporting data in order for the
Agency to be able to consider it for final action.
2. Alternative Option Considered: No Action
    EPA considered taking no action to modify the requirements at
Sec. Sec.  112.8(c)(6) and 112.12(c)(6). However, the Agency believes
that all SPCC facility owners and operators subject to Sec.
112.8(c)(6) or Sec.  112.12(c)(6) should be allowed the increased
flexibility offered by the inspection requirements currently provided
for qualified facilities, particularly for the inspection of portable
containers and small shop-built tanks. Therefore, EPA chose not to
propose this ``no action'' option.

K. Animal Fats and Vegetable Oils

    Stakeholders have commented that animal fats and vegetable oils
(AFVOs) merit differentiated requirements under the SPCC regulation. In
particular, the regulated community points to differences between the
toxicity and biodegradation profiles of AFVOs and those of petroleum
oils. Because of these claims, and in response to the Edible Oil
Regulatory Reform Act (EORRA), the Agency has on several occasions
formally requested information and supporting scientific data that
would inform such a determination.
    The Agency provided a detailed review of AFVO toxicity and
environmental effects as part of the denial of a petition requesting to
amend the Facility Response Plan (FRP) rule (62 FR 54508, October 20,
1997). EPA has reviewed the data available at that time, as well as
more recent data that the Agency has gathered (See Technical Background
Document for Animal Fats and Vegetable Oils Regulated under the Spill
Prevention, Control, and Countermeasure (SPCC) Regulation (40 CFR part
112) (September 12, 2007) in the docket for today's proposed
rulemaking). Based on this review, EPA

has determined that not all AFVOs are non-toxic. Additionally, there
are other non-AFVO oils which have toxicity profiles that are similar
to some AFVOs. Therefore, the Agency continues to believe that it is
not appropriate to differentiate between AFVOs and other oils based on
toxicity.
    In addition, in 1999, EPA issued an Advanced Notice of Proposed
Rulemaking (ANPRM) regarding differentiation of the requirements for
AFVOs from petroleum and other oils subject to the SPCC regulation (64
FR 17227, April 8, 1999). In the 2002 amendments to the SPCC rule, EPA
provided new subparts to facilitate differentiation between categories
of oil listed in EORRA (67 FR 47042, July 17, 2002). In December 2005,
the Agency again requested comments and scientific evidence to support
differentiation for AFVOs as part of a broader proposal to amend the
SPCC requirements (70 FR 73524, December 12, 2005). In December 2006,
the Agency promulgated amendments to the SPCC regulation, which
included removing requirements that were not applicable for facilities
that stored AFVO (71 FR 77266, December 26, 2006).
    The Agency has again examined the data submitted in response to the
aforementioned actions (Technical Background Document for Animal Fats
and Vegetable Oils Regulated under the Spill Prevention, Control, and
Countermeasure (SPCC) Regulation (40 CFR part 112), September 12,
2007). This data was submitted to support the claim that AFVOs
biodegrade more readily than petroleum oils and therefore merit
differentiated requirements under the SPCC rule. Although this data
indicates that the AFVOs tested degraded to a greater extent than the
petroleum oils tested, other data published in the scientific
literature suggests that other non-AFVOs (e.g., some petroleum and
synthetic oils) degraded equally to some AFVOs. EPA also notes that the
biodegradation data submitted has been generated from laboratory tests,
and therefore are only representative of the conditions set forth in
the test, representing a relatively limited comparison of some
vegetable oils with some petroleum oils. Additionally, other data
published in the scientific and technical literature suggests that not
all AFVOs are as readily biodegradable as some have claimed. These
findings are consistent with the findings from other organizations that
have used biodegradation tests to evaluate oils. That is, the
laboratory tests suggest that there are petroleum and/or other oils
that biodegrade similarly to AFVOs. As a result, EPA is unable to
establish a ``bright line'' between AFVOs and all other oils based on
biodegradability, and thus believes it is not appropriate to
differentiate between them based on this criterion. For more
information, see Technical Background Document for Animal Fats and
Vegetable Oils Regulated under the Spill Prevention, Control, and
Countermeasure (SPCC) Regulation (40 CFR part 112), (September 12,
2007), in the docket for this proposed rulemaking.
    EPA is now considering whether there would be an alternative
approach to differentiation that is not based on the oil's toxicity and
its inherent physical/chemical properties, but rather based on the way
these oils are stored and handled at a facility. EPA has focused
specifically on the integrity testing requirements for bulk storage of
AFVOs to address concerns raised by the regulated community. Therefore,
the Agency is considering a compliance alternative for differentiated
integrity-testing requirements for certain bulk storage containers that
store AFVOs and that meet specific design and operational criteria.
    Specifically, EPA is proposing to modify Sec.  112.12(c)(6) to
provide the PE or the owner or operator certifying an SPCC Plan the
flexibility to determine the scope of integrity testing that is
appropriate for certain AFVO bulk storage containers. This flexibility
would apply to those bulk storage containers that are subject to the
applicable sections of the Food and Drug Administration (FDA)
regulation 21 CFR part 110, Current Good Manufacturing Practice in
Manufacturing, Packing or Holding Human Food, and that meet the
following additional criteria: (1) Are elevated; (2) made from
austenitic stainless steel; have (3) no external insulation; and (4)
are shop-built. That is, an owner or operator would be allowed to use
industry standards for visual inspection of these containers, in lieu
of the current integrity testing requirements (i.e., visual inspection
and some other testing technique) or the proposed revisions to the
integrity testing requirements as outlined under Section J in this
proposal without having to make an environmental equivalence
determination, including stating the reasons for nonconformance with
the current integrity testing requirements, in accordance with Sec.
112.7(a)(2). The owner or operator would be required to document
procedures for inspections and testing in the SPCC Plan, including
those for AFVO bulk storage containers that are eligible for the
differentiated requirements in this proposal. EPA believes that AFVO
bulk storage containers which meet the above criteria already have
environmentally equivalent measures in place for integrity testing and
thus, do not need to state reasons for nonconformance with the current
integrity testing requirements (i.e., visual inspection and some other
testing technique). Therefore, we are proposing this alternative option
for integrity testing and no environmental equivalence determination in
accordance with Sec.  112.7(a)(2) is necessary. This alternative would
typically apply at food processing facilities that are subject to 21
CFR part 110 and store animal fats or vegetable oil that are intended
for human consumption. The regulations at 21 CFR part 110 have specific
requirements for the design, construction, and use of AFVO equipment.
The Agency believes that the proposed criteria ensure that the AFVO
containers are less prone to internal and external corrosion and that
the design elements make visual inspection effective.
1. Differentiation Criteria
    Properly designed and implemented integrity testing programs
include practices and procedures to identify potential alterations to a
bulk storage container's shell, bottom plate, foundation, and/or
attached ancillary equipment, all of which may compromise a container's
integrity. EPA generally believes it is important that the Plan include
the scope of an integrity-testing program with consideration of
established industry standards. Factors to consider when industry
standards do not exist include, but are not limited to, the likelihood
of the deterioration of the container foundation, stress-induced
fractures in the shell wall or bottom plate, and internal and external
corrosion. These are the factors the Agency considered in setting the
proposed criteria. The FDA requirements for design and maintenance in
addition to the criteria outlined in this proposal would be
environmentally equivalent to the current integrity testing
requirements under Sec.  112.12(c)(6).
a. Containers Subject to FDA Regulations--21 CFR Part 110
    When developing an integrity-testing program for AFVO bulk storage
containers, FDA rule requirements may serve, in whole or in part, as
alternative measures that provide equivalent environmental protection
to an industry standard. Applicable requirements within 21 CFR part
110, when taken

together with the additional criteria in this proposal, can serve as
equivalent alternative measures that include the main elements of an
integrity-testing program under the SPCC regulation. The minimal
elements for this type of integrity-testing program can be separated
into three main structural integrity areas: (1) Container foundations,
(2) container support structures, and (3) the container itself. FDA
requirements in each of these areas serve to support this proposed rule
for AFVO.
    i. Container Foundations. FDA requires that facilities be
constructed in such a manner that the floor, walls, and ceilings be
adequately cleaned and kept clean and in good repair (21 CFR
110.20(b)(4)). Bulk storage containers that sit atop floors that fall
under this requirement are expected to be maintained and kept in good
repair. Substances that accumulate on the floor can present an
unsanitary condition, which may lead to food contamination. In
addition, cracks in the floor under and/or around the foundation of a
bulk storage container can accumulate food particles, organic matter,
pests, and other potentially unsanitary substances that also could lead
to food contamination. EPA believes that the procedures and practices,
such as frequent monitoring of the floor around a bulk storage
container, that are implemented in order to address this requirement
serve not only to comply with the FDA requirements, but also address
the elements associated with the structural integrity of the
container's foundation.
    ii. Container Support Structures. FDA requires all plant equipment,
including the container's structural supports, to be designed of such
material and workmanship as to be adequately cleanable, and for it to
be properly maintained (21 CFR 110.40(a)). Periodic maintenance of the
structural support(s) of a bulk storage container is also an oil spill
preventive measure, especially inside a facility where mobile equipment
(e.g. forklifts) can strike and damage the container and/or its
structural supports.
    iii. Container Itself. When considering the potential for
corrosion, EPA considered the FDA requirements for food contact
surfaces (e.g., internal surface of a food oil bulk storage container)
and non-food contact surfaces (e.g., external surface of a bulk storage
container). In most cases, FDA requirements address only food contact
surfaces. For the purpose of oil spill prevention, the potential for
corrosion of the external surface of bulk storage container is equally
important.
    Internal Corrosion. FDA requires the design, construction, and use
of equipment to preclude the adulteration of food with, among other
potential contaminants, metal fragments (21 CFR 110.40(a)). FDA further
requires that food contact surfaces shall be corrosion-resistant when
in contact with food. While it is possible that corrosion of the
interior surface of a bulk storage container can occur, it is also
likely that any metal that dislodges from the interior surface is
captured by a means that prevents metal inclusion. EPA believes that an
owner or operator of a facility that monitors AFVOs for metal fragments
as the oil exits the bulk storage container, either by sampling the oil
itself for metal or by monitoring the inclusion prevention device for
metal fragment accumulation, is a reasonable alternative approach to an
internal inspection for corrosion. This, in conjunction with the design
and applicable regulatory requirements are likely to prevent the
corrosion of the internal contact surface in food grade AFVO bulk
storage containers.
    External Corrosion. For some bulk storage container configurations,
external corrosion can be the primary concern with respect to their
integrity. Significant corrosion to the exterior surface can occur from
exposure to moisture and in some cases, may be enhanced if insulation
is present. Significant corrosion can also occur from overfills of oil
and/or any associated substance(s) that have accumulated on the
exterior surface, as well as from cleaning and sanitizing agents.
    FDA requires equipment that is in the manufacturing or food-
handling area and that does not come into contact with food must be
constructed to be kept in a clean condition (21 CFR 110.40(c)).
Exterior surface of bulk storage containers that are located in the
manufacturing or food-handling area and that are subject to this
requirement, are expected to be maintained to a higher standard than
other bulk storage containers, which are not subject to a similar
requirement. Since plant equipment used in the manufacturing or food-
handling area must be designed to be kept clean and withstand the
corrosive effects of cleaning agents, it is generally constructed of
austenitic stainless steel.
    EPA requests comments on the appropriateness of using the FDA
requirements under 21 CFR part 110 as a criterion for the proposed
alternative approach for integrity testing. Any suggestions must
include an appropriate rationale in order for the Agency to be able to
consider it for final action.
b. Elevated Bulk Storage Containers
    FDA recommends, but does not require, that all plant equipment be
installed and maintained to facilitate its cleaning, including all
adjacent spaces. According to 21 CFR 110.40(a), ``all equipment should
be so installed and maintained as to facilitate cleaning of the
equipment and of all adjacent spaces.'' In practice, an owner or
operator of a facility implementing this recommended practice is likely
to have a bulk storage container that is elevated off the floor, based
upon discussion with AFVO container manufacturers and owners or
operators of AFVO facilities. Food equipment is generally designed to
stand on legs, which elevates the plant equipment off the floor so that
the space between the plant equipment and the floor can be cleaned. For
the purposes of oil spill prevention, elevated bulk storage containers
allow visual inspections for oil discharges all around the container.
    An elevated bulk storage container also facilitates complete
drainage because the oil can be withdrawn from the lowest point in the
container, so that foreign substances or materials do not accumulate
and contaminate the food oil. For the purposes of oil spill prevention,
self-draining containers operating using gravity flow allows complete
drainage and prevents substances other than oil (e.g., water) from
accumulating at the bottom of the container, thus minimizing corrosion.
EPA believes that the self-drainage design, in conjunction with the
applicable regulatory requirements, is likely to prevent the corrosion
of the internal contact surface in food grade AFVO bulk storage
containers.
    EPA requests comments on this criterion for the proposed
alternative approach for integrity testing for AFVO bulk storage
containers. Any suggestions must include an appropriate rationale and
supporting data in order for the Agency to be able to consider it for
final action.
c. Containers Made From Austenitic Stainless Steel
    AFVOs are not required explicitly to be stored in austenitic
stainless steel bulk storage containers under 21 CFR part 110. For
example, a carbon steel container with an internal liner may suffice
for the corrosion resistant requirements under FDA because in this case
the lining is the food contact surface that is corrosion resistant.
Although this meets the regulatory requirements for food contact
surfaces, it also may be an indication that the oil in the bulk storage
container is

incompatible with an unlined bulk storage container of the same
material.
    In addition, EPA believes that non-homogenous container systems
(e.g., containers with external insulation, external coating, mild-
carbon steel shell, internal liner) are more complex than homogenous
container systems (e.g., containers constructed solely of austenitic
stainless steel) and may require additional inspection measures to
ensure the integrity of the container. Furthermore, austenitic
stainless steel containers are often used because cleaning agents and
acidic detergents used to clean food and non-food contact surfaces can
be corrosive if used on incompatible surfaces. Therefore, EPA proposes
to limit this alternative approach for integrity testing to AFVO bulk
storage containers made of austenitic stainless steel.
    It is important to note that this limitation is only for an owner
or operator that chooses to take advantage of the alternative
compliance option. A facility Plan may still be certified with an
environmental equivalence determination, in accordance with Sec.
112.7(a)(2) of the SPCC rule, for other types of bulk storage
containers that are similarly corrosion resistant.
    EPA requests comments on this criterion for the proposed
alternative approach for integrity testing for AFVO bulk storage
containers. Any suggestions must include an appropriate rationale and
supporting data in order for the Agency to be able to consider it for
final action.
d. Containers With No External Insulation
    EPA proposes to limit this proposed alternative option to
containers with no external insulation. The Agency believes that
inspections based on frequent monitoring of the exterior surface of a
bulk storage container for corrosion and/or other mechanisms that can
threaten a container's integrity is a minimum criterion for an
alternative measure that provides equivalent environmental protection.
External insulation covering the outside of a bulk storage container
acts as a physical barrier to effective visual examination of the
exterior surface. If not properly sealed, insulating materials covering
the exterior surface of a bulk storage container and/or any associated
equipment and piping can become damp. Insulation that retains moisture
and that is adjacent to a container's exterior surface can cause
significant corrosion, which may threaten the integrity of the
container.
    EPA is unaware of any sanitation provision or regulatory
requirements that require an inspection between the insulation and the
exterior surface of a bulk storage container. Furthermore, we do not
know of any established industry methods or procedures, or industry
standards specific to AFVOs, to evaluate the exterior surface of a bulk
storage container that is covered by insulation. Therefore, EPA
believes only containers with no external insulation should be included
in this proposed alternative option for integrity testing.
    EPA requests comments on this criterion for the proposed
alternative approach for integrity testing for AFVO bulk storage
containers. Any suggestions must include an appropriate rationale and
supporting data in order for the Agency to be able to consider it for a
final action. Additionally, we seek input on any applicable standards,
sanitary provisions, or other regulatory requirements that apply to the
construction, design and/or inspection of AFVO bulk storage containers.
e. Shop-Fabricated Containers
    EPA has stated that visual inspection might suffice for elevated
shop-built bulk storage containers because these containers can be
inspected on all sides (67 FR 47120, July 17, 2002). In the SPCC
Guidance for Regional Inspectors document, EPA went on to say that ``*
* * visual inspection provides equivalent environmental protection when
accompanied by certain additional actions to ensure that the containers
are not in contact with the soil. These actions include elevating the
container in a manner that decreases corrosion potential and makes all
sides of the container, including the bottom, visible during
inspection.'' Shop-fabricated bulk storage containers, as opposed to
field-erected, may best fit these conditions.
    EPA proposes to limit this proposed alternative option to shop-
fabricated containers (i.e., shop-built). Shop-fabricated containers
are those containers that are shop-assembled in one piece before
transport to the installation site which limits the maximum capacity of
the container so that they can be transported over the road by truck.
Shop-fabricated containers generally have lower volume capacities,
smaller tank diameters, and a fewer number of welds than field-erected
containers and are typically comprised of a single type of material
with a single wall thickness.
    Alternatively, field-erected (i.e., field-constructed) containers
can store much larger volumes of oil because individual pieces of the
container can be transported to and assembled at the installation site,
leading to much larger container capacities. Because of their greater
size and complexity, field-erected containers have more stringent
engineering requirements than shop-fabricated containers which would
need to be considered in developing an appropriate inspection program.
For example, field-erected containers may have variable shell-wall
thicknesses, and/or be comprised of different materials to account for
variations in the stresses caused by hydrostatic pressure. These field-
erected containers generally have a significantly greater number of
welds as compared to a shop-fabricated container because they are
fabricated on-site from individual pieces. The stress on the container
walls and joints is greater as the diameter and/or height of the
container increases. Finally, a brittle fracture evaluation of a field-
erected container may be necessary if the thickness of the shell wall
is above a certain value and the container undergoes a repair,
alteration, reconstruction, or a change in service that might affect
the risk of a discharge or failure. The complexity associated with the
construction of field-erected containers is considered in designing the
scope and frequency of an integrity testing program.
    This proposal, therefore, is limited to shop-fabricated containers
because they are simpler in design and construction (e.g., typically
subject to less stress, have fewer welds, and are less likely to be
subject to brittle fracture failure) than field-erected containers. The
Steel Tank Institute's (STI) SP001, Standard for the Inspection for
Aboveground Storage Tanks, establishes the scope and frequency for
visual inspections of shop-fabricated containers. This proposed rule is
consistent with past regulatory guidance and current industry best
practices for this particular class of bulk storage containers and
thus, the Agency is proposing to require that the alternative option be
limited to shop-fabricated containers.
    EPA requests comments on this criterion for the proposed
alternative approach for integrity testing for AFVO bulk storage
containers. Any suggestions must include an appropriate rationale and
supporting data in order for the Agency to be able to consider it for a
final action.
2. Required Recordkeeping
    The SPCC regulations require inspections and tests be conducted in
accordance with the written procedures that the owner or operator or
the certifying PE develop for the facility be kept with the SPCC Plan
in accordance with the recordkeeping provisions of

Sec.  112.7(e). We believe that visual inspection that is part of
periodic maintenance of bulk storage container's support and foundation
must be documented. Records of inspections and tests kept under usual
and customary business practices will suffice. To develop an
appropriate inspection, evaluation, and testing program for an SPCC-
regulated facility, the PE should refer to the appropriate requirements
under 21 CFR part 110.
    For these reasons, EPA believes that streamlined integrity-testing
requirements for certain AVFO containers are warranted. This proposal
does not relieve an owner or operator from complying with any other
bulk storage container requirement in Sec.  112.12(c). The Agency
requests comments on the proposed approach and criteria. Any
suggestions for alternative approaches must include a rationale and
supporting data in order for the Agency to be able to consider it for
final action.

L. Oil Production Facilities

    Since its original promulgation in 1973, the SPCC rule has included
differentiated requirements for oil production facilities (Sec.
112.9), as compared to other types of facilities (Sec. Sec.  112.8,
112.10, 112.11., and 112.12). Based on issues brought forth by the
regulated community and by other federal agencies (e.g., DOE), EPA is
considering several ways that SPCC requirements can be further
streamlined, tailored, or clarified for oil production facilities.
    As discussed in Section F above, EPA is proposing to exclude oil
production facilities from the loading/unloading rack requirements at
Sec.  112.7(h) because oil production facilities typically do not have
the equipment meeting the proposed definition for a loading/unloading
rack. Such oil production facilities may also benefit from the proposed
revisions to the definition of ``facility,'' as described in Section D
above, which may allow greater flexibility in determining the extent of
a facility. Consistent with the revisions to the definition of
``facility,'' EPA is also proposing revisions to the definition of
``production facility'' to clarify that the production facility
definition does not govern the applicability of 40 CFR part 112, but
rather establishes which specific provisions of the rule may apply at a
particular facility.
    Additional specific modifications being proposed in this notice, as
discussed below, include: Extending the timeframe by which a new oil
production facility must prepare and implement an SPCC Plan; exempting
flow-through process vessels at oil production facilities from the
sized secondary containment requirements while maintaining general
secondary containment requirements and requiring additional oil spill
prevention measures; establishing more prescriptive requirements for
contingency planning and a flowline/intra-facility gathering line
maintenance program, while exempting flowlines and intra-facility
gathering lines at oil production facilities from secondary containment
requirements; and clarifying the definition of ``permanently closed''
as it applies to an oil production facility. EPA also describes
approaches for alternative criteria for an oil production facility to
be eligible to self-certify an SPCC Plan as a qualified facility, and
approaches to address produced water storage containers at an oil
production facility.
1. Definition of Production Facility
    As described in section D above, EPA is proposing to modify the
definition of ``facility'' to clarify that contiguous or non-contiguous
buildings, properties, parcels, leases, structures, installations,
pipes, or pipelines may be considered separate facilities, and to
specify that the ``facility'' definition governs the applicability of
40 CFR part 112. These proposed revisions would allow an owner or
operator to separate or aggregate containers to determine the facility
boundaries, based on such factors as ownership or operation of the
buildings, structures, containers, the activities being conducted,
property boundaries, and other relevant considerations. To provide
clarity consistent with these proposed revisions, EPA is also proposing
certain revisions to the definition of ``production facility.''
a. Proposed Revisions to the Definition of Production Facility
    EPA is proposing to amend the definition of ``production
facility,'' as found in Sec.  112.2, in two ways. First, consistent
with the proposed revision to the definition of ``facility,'' EPA seeks
to clarify that while only the definition of ``facility'' governs the
overall applicability of 40 CFR part 112, the definition of
``production facility'' is used to determine which of the type-specific
sections of the rule may apply at a particular facility, in addition to
the general rule sections. For example, if an onshore facility meets
the definition of ``production facility,'' then the owner or operator
is subject to the provisions of Sec.  112.9, or potentially to the
provisions of Sec.  112.10 if the facility is involved in drilling or
workover activities, in addition to Sec. Sec.  112.1 through 112.7.
    Second, consistent with the proposed revisions to the definition of
``facility'' that emphasize the flexibility in how a facility owner or
operator can determine the boundaries of a facility, EPA is proposing
to modify the definition of ``production facility'' to clarify the
flexibility allowed in determining the extent of the facility. The
current definition includes the phrase ``and located in a single
geographical oil or gas field operated by a single operator.'' EPA
proposes to modify the phrase to clarify that a production facility
``may be located in a single geographical oil or gas field operated by
a single operator.'' Because the definition of facility is flexible,
EPA recognizes that a production facility need not be located in a
single geographical field operated by a single operator. Like other
facilities, a production facility's boundaries may be determined based
on site-specific factors such as ownership, management, or operation of
the containers, buildings, structures, equipment, installations, pipes,
or pipelines on the site; similarity in functions, operational
characteristics, and types of activities occurring at the site;
adjacency; or shared drainage pathways.
    The Agency seeks comments on whether the proposed revision to the
definition of ``production facility'' is appropriate. Specifically, EPA
seeks comment on whether the phrase ``and located in a single
geographical oil or gas field operated by a single operator'' should be
deleted from the definition to provide greater clarity. Any suggestions
for alternative language to amend the definition must include an
appropriate rationale in order for the Agency to be able to consider it
for final action.
b. Clarifications Related to Drilling and Workover Facilities
    Under the SPCC rule, the term ``production facility'' can encompass
drilling and workover activities, as well as production operations.
However, different provisions of the rule apply to these different
activities. Therefore, EPA seeks to clarify the requirements applicable
to the various phases of activities at a production facility: drilling,
production, and workover.
    Both drilling and workover activities tend to be temporary in
nature and are performed using mobile rigs and associated equipment.
The owner or operator is required to develop an SPCC Plan under Sec.
112.3(c) because a drilling or workover facility is considered a mobile
facility. He is subject to the administrative and general requirements

of the SPCC rule (Sec. Sec.  112.1 through 112.7), as well as the
specific requirements in Sec.  112.10 (for onshore facilities) or Sec.
112.11 (for offshore facilities). EPA notes that under the requirements
of Sec. Sec.  112.10 and 112.11, a regulated oil storage container
associated with a drilling or workover facility is subject to the
general secondary containment requirement (Sec.  112.7(c)); however, no
sized secondary containment requirements exist.
    Drilling activities involve the initial establishment of an oil
well: drilling the hole, inserting and cementing the casing, and
completing the well to start the flow of oil to the surface. As noted
above, a drilling facility must prepare and implement an SPCC Plan and
is subject to the specific requirements in Sec.  112.10 (for onshore
facilities) or Sec.  112.11 (for offshore facilities).
    Once the oil is flowing, the drilling rig is removed from the site
and production equipment, such as a pump or valve assembly, is set up
to extract or control the flow of oil from the well. At this point,
drilling activities have ceased and production has begun; the facility
is considered a production facility. The processes performed at a
typical oil production facility include extraction, separation and
treatment, storage, and transfer. The owner or operator of a production
facility is subject to the administrative and general requirements of
the SPCC rule (Sec. Sec.  112.1 through 112.7) as well as the specific
requirements in Sec.  112.9 (for onshore facilities) or Sec.  112.11
(for offshore facilities).
    During the life of an oil well, maintenance or remedial work may be
necessary to improve productivity. A specialized workover rig,
equipment, and associated containers are brought onsite to perform the
maintenance or remedial activities. Workover operations are distinct
from the normal production operations, and as such are not subject to
the requirements of Sec.  112.9, but are subject to the applicable
requirements in Sec.  112.10 (for onshore facilities) or Sec.  112.11
(for offshore facilities). Because workover activities are a distinct
operation and may be conducted by a separate owner or operator, a
workover operation may be considered a separate, mobile facility, and
described in a different SPCC Plan, separate from the production
facility. EPA notes that although production activities may temporarily
cease during workover, if the production equipment and containers (such
as those found in a tank battery) remain operable then the production
facility owner/operator must maintain his own SPCC Plan during workover
activities. To clarify that drilling and workover activities are not
subject to the provisions at Sec.  112.9, EPA proposes to amend the
title of Sec.  112.9 to read ``Spill Prevention, Control, and
Countermeasure Plan requirements for onshore oil production facilities
(excluding drilling and workover facilities).'' EPA also proposes to
amend the introductory sentence of the section accordingly.
    The Agency seeks comments on whether the proposed revisions to the
title and introductory sentence of Sec.  112.9 adequately clarify that
the section does not apply to drilling and workover facilities. Any
suggestions for alternative approaches must include an appropriate
rationale in order for the Agency to be able to consider it for final
action.
2. SPCC Plan Preparation and Implementation
    EPA proposes to amend Sec.  112.3(b) to extend the timeframe by
which an oil production facility that becomes operational after July 1,
2009 must prepare and implement an SPCC Plan. Under the current rule,
any facility that becomes operational after July 1, 2009 (a ``new
facility'') must prepare an SPCC Plan before beginning operations.
Unlike other facilities subject to the SPCC rule, however, an oil
production facility has unique characteristics during the start-up
period of its operations, which lead to variability in the amount and
type of oil handled. EPA recognizes that, based on the often variable
conditions of the oil reservoir, for some oil fields, the type and
proportion of products may be uncertain until after the processes of
extraction have begun. Additionally, the amount of pressure in the
reservoir and the changes introduced by drilling the well hole could
lead to variable initial flowrates that may take time to stabilize.
While a new oil production facility on an older oil field may have
predictable flowrates and proportion of product, the Agency notes the
importance of providing this proposed relief for newer oil fields. The
variables associated with the start of operations could lead to
significant changes in necessary storage capacity and facility design.
Such changes would necessitate that an owner/operator of a new oil
production facility continually amend his Plan until operations
stabilize, and have a licensed PE certify (or owner or operator of a
qualified facility self-certify) any technical amendment. To alleviate
this burden, EPA proposes to extend the time by which a new oil
production facility must prepare and implement an SPCC Plan.
a. Proposed Timeframe for Plan Preparation and Implementation
    The proposed amendment would allow a new oil production facility
that becomes operational after July 1, 2009 six months after the start
of operations to prepare and implement a Plan. The ``start of
operations'' for an oil production facility is indicated by the start
of well fluid pumping, transfer via flowlines, separation, treatment or
storage of crude oil. EPA proposes to exclude oil production facilities
from the current requirements at Sec.  112.3(b)(1), and to add a new
paragraph at Sec.  112.3(b)(3) to provide the requirement for an owner
or operator of a new oil production facility to prepare and implement
an SPCC Plan six months after the start of operations.
    The timeframe by which EPA is proposing to extend SPCC Plan
preparation and implementation was chosen based on EPA's professional
judgment, because such oil production facilities are likely to
stabilize within six months after the start of operations. The proposed
amendment is extended to oil production facilities only due to the
circumstances specific to an oil production facility--their unique
characteristics of variable and uncertain initial flowrates.
    Delaying SPCC Plan preparation and implementation for a period of
time after operations begin is somewhat consistent with the
requirements originally promulgated in 1973 (38 FR 34164, December 11,
1973). At the time the rule was originally promulgated, EPA required
preparation of an SPCC Plan six months after the start of operations
and implementation of the Plan no later than one year after the start
of operations. This requirement was amended in 2002 (67 FR 47042, July
17, 2002) to require new facilities (those that become operational
after the effective date of the rule) to prepare and implement an SPCC
Plan before beginning operations. EPA made this change because new
facilities generally should already be aware of the need for an SPCC
Plan. That is, new facilities subject to the SPCC rule are able to take
SPCC requirements into consideration and undertake the necessary
construction, purchase equipment, or develop procedures before the
start of operations. However, this amendment in 2002 did not take into
consideration the unique nature of oil production facilities.
    Unlike the requirements originally promulgated in 1973, the
proposed amendment combines the date for Plan preparation and
implementation,

allowing six months total time to both prepare and implement an SPCC
Plan.
    EPA notes that it is reasonable and usually less expensive to
implement certain oil spill prevention measures, such as secondary
containment around containers, at the time of the container
installation. Therefore, EPA recognizes that even during the interim
period before required Plan preparation and implementation, an oil
production facility may already have certain environmentally protective
measures in place. Under Section 311(b)(3) of the Clean Water Act, the
oil production facility owner or operator would still be liable for any
harmful quantities of oil discharged from the facility into navigable
waters or adjoining shorelines, even before the requirement to prepare
and implement an SPCC Plan comes into effect. Furthermore, the Regional
Administrator would continue to have the authority under Sec.  112.1(f)
to require an owner or operator of an oil production facility to
prepare and implement an SPCC Plan or any applicable part at any point
during the six months after start of operations, if a determination is
made that it is necessary to prevent a discharge of oil into navigable
waters or adjoining shorelines. In addition, a facility owner/operator
can request an extension of time to come into compliance in accordance
with Sec.  112.3(f) if circumstances are beyond his control, e.g.,
there are no qualified personnel available or construction or equipment
delivery delays.
    The proposed rule amendment would apply only to a new oil
production facility. The proposed amendment would not apply to a
drilling or workover facility. Drilling and workover facilities are
subject to the requirement at Sec.  112.3(c) for mobile facilities and
may implement a general Plan. Therefore, during the initial drilling of
the well, there are measures required for spill prevention and response
for any oil discharges.
    EPA requests comments on whether an amendment to the Plan
preparation and implementation date is appropriate for new oil
production facilities, and whether new facilities in other industry
sectors have similar variability during the start-up period of
operations and would therefore benefit from a similar compliance date
extension. Any suggestions must include an appropriate rationale and
supporting data in order for the Agency to be able to consider it for
final action.
b. Alternative Option Considered: One Year for Oil Production
Facilities To Prepare and Implement a Plan
    EPA considered an alternate option to address the variability in
start-up operations at a new oil production facility, wherein an owner/
operator would be allowed one year for SPCC Plan preparation and
implementation after the start of operations. A variation of this
alternative is to allow six months after the start of operations for
SPCC Plan preparation, and another six months (for a total of one year
after the start of operations) for Plan implementation. EPA recognizes
that providing one year is consistent with the original promulgation of
the rule in 1973. However, in proposing this amendment, EPA intends to
provide this relief given the unique characteristics of a new oil
production facility. Given that an oil production facility is likely to
stabilize operations within six months from start-up, one year for Plan
preparation and implementation does not seem necessary. The date for
SPCC Plan preparation and implementation was selected given the
timeframe for stabilization of operations at a new oil production
facility. Additionally, a facility owner/operator can request an
extension of time to come into compliance in accordance with Sec.
112.3(f) if circumstances are beyond his control, e.g., no qualified
personnel available or construction or equipment delivery delays.
Therefore EPA chose not to propose this option.
    The Agency welcomes comments on this alternative or other
alternatives regarding the variability during the start-up period of
operations at a new oil production facility. Any suggestions must
include an appropriate rationale and supporting data in order for the
Agency to be able to consider it for final action.
3. Flowlines and Intra-Facility Gathering Lines
    EPA proposes to exempt flowlines and intra-facility gathering lines
from the secondary containment requirements under the SPCC rule. In
lieu of a secondary containment requirement, EPA proposes to require a
contingency plan and written commitment of manpower, equipment, and
materials for flowlines and intra-facility gathering lines at an oil
production facility, and to prescribe specific requirements for a
flowline and intra-facility gathering line maintenance program.
a. Examples of Flowlines and Gathering Lines
    For the purposes of the SPCC rule, flowlines are considered to be
the piping that transfers oil and well fluids from the wellhead to the
tank battery where separation and treatment equipment are typically
found. A flowline may also connect a tank battery to an injection well.
Flowlines are relatively small diameter steel or fiberglass piping
(generally less than four inches). Depending on the size of the oil
field, flowlines may run for hundreds of feet to a tank battery.
    The term ``gathering lines'' is a general term referring to the
piping or pipelines that transfer the crude oil product between tank
batteries, within or between facilities. Gathering lines often emanate
from an oil production facility's lease automatic custody transfer
(LACT) unit, which transfers oil to other facilities involved in
gathering, refining or pipeline transportation operations. EPA
recognizes that gathering lines are often outside of the Agency's
jurisdiction because they ``transport'' oil outside of an oil
production facility. Based on a 1971 Memorandum of Understanding (MOU)
with the Department of Transportation (DOT) (see Appendix A to 40 CFR
part 112), EPA has jurisdiction only over non-transportation-related
facilities, which includes pipelines that transport oil within a
facility. Any pipeline, including a gathering line, that transports oil
between facilities or from a facility to a vessel, is considered
transportation-related and is therefore outside the jurisdiction of EPA
and not subject to the SPCC rule. However, the definition of
``facility'' as it applies to the SPCC rule is flexible. As discussed
in Section D of this preamble, an owner/operator can choose to
determine the facility's boundaries based on a number of site-specific
factors. A typical oil production facility includes a wellhead, a tank
battery (including, but not limited to, separation equipment, stock oil
containers and produced water containers), and the flowlines that
transfer the oil and well fluids from the wellhead to the tank battery.
Depending upon how an owner/operator defines his facility, an oil
production facility may also include gathering lines. For example, if
multiple tank batteries are included as part of the same facility for
purposes of developing one SPCC Plan, then any gathering lines that
connect the tank batteries, or flow to a central collection or
gathering area or centralized tank battery within the facility
boundaries, must also be included in the SPCC Plan. EPA

considers any gathering lines within the boundaries of a facility to be
``intra-facility gathering lines'' and within EPA's jurisdiction for
the purposes of SPCC rule applicability.
    EPA notes that the definition of ``production facility'' has
included both the terms ``flowlines'' and ``gathering lines'' since it
was promulgated in July 2002 (67 FR 47042), and that EPA is simply
clarifying, not modifying, the applicability to these types of
pipelines found within a facility (``intra-facility'').
    Given the common understanding of the terms ``flowline'' and
``gathering line'' within the oil production sector, EPA does not
believe that it is necessary to propose definitions for these terms
under Sec.  112.2. However, EPA requests comments as to whether
regulatory definitions for ``flowline'' and ``intra-facility gathering
line'' are necessary, and if so, suggestions for an appropriate
definition. Any suggestions must include an appropriate rationale and
supporting data in order for the Agency to be able to consider it for
final action.
b. Requirements in Lieu of Secondary Containment
    The SPCC rule requires secondary containment for all areas of a
facility where there is a potential for discharge as described in Sec.
112.1(b). This requirement, found at Sec.  112.7(c), applies to
flowlines and intra-facility gathering lines. However, EPA recognizes
that providing secondary containment for these pipelines can be
difficult and expensive for an owner/operator because these lines are
often several miles long, buried, and can extend far from the main
facility. Flowlines and intra-facility gathering lines often are placed
across land that is not owned by the owner/operator of the oil
production facility (e.g., agricultural land), and providing secondary
containment for these lines can be difficult, intrusive, or disruptive
to the property owner. When flowlines and intra-facility gathering
lines are located in farm fields, providing a secondary containment
structure may result in soil erosion and negative impacts to the land.
Buried flowlines present additional difficulty, because their exact
location may be uncertain, especially at an oil production facility
that has changed ownership since the original installation of the
flowlines.
    The Agency is responding to the concerns described above by
proposing tailored relief in an effort to improve compliance and
enhance environmental protection. EPA believes that secondary
containment is, in most cases, impracticable for flowlines and intra-
facility gathering lines. Therefore, EPA is proposing an amendment to
Sec.  112.7(c) that would remove secondary containment requirements for
flowlines and intra-facility gathering lines at an oil production
facility, and instead require implementation of an oil spill
contingency plan in accordance with 40 CFR part 109 (Criteria for
State, Local and Regional Oil Removal Contingency Plans) and a written
commitment of manpower, equipment, and materials required to
expeditiously control and remove any quantity of oil discharged that
may be harmful, without having to make an impracticability
determination for each piece of piping. This new requirement would be
found in proposed revisions to Sec.  112.9(d)(3). It should be noted
that the use of a contingency plan does not relieve the owner/operator
of liability associated with an oil discharge to navigable waters or
adjoining shorelines that violates the provisions of Section 311(b)(3)
of the Clean Water Act, 33 U.S.C. 1321(b)(3).
    In the preamble to the 2002 amendments (67 FR 47042, July 17,
2002), EPA discusses how any facility owner/operator who makes a
determination of impracticability and has submitted a Facility Response
Plan (FRP) under Sec.  112.20 has satisfied the contingency planning
requirement, because an FRP is more comprehensive than a contingency
plan under 40 CFR part 109. Similarly, the Agency believes that the
owner or operator of an oil production facility who has prepared an FRP
would satisfy the contingency planning requirement for flowlines and
gathering lines. If such a facility owner/operator has already
developed an FRP to comply with Sec.  112.20, then he or she would not
need to also develop a contingency plan in accordance with 40 CFR part
109. However, the facility owner or operator would still be required to
comply with the revised flowline/intra-facility gathering line
maintenance program requirements proposed in this notice.
    Finally, EPA acknowledges that given the characteristics of certain
intra-facility gathering lines, these pipelines may be regulated under
requirements of both EPA and DOT. Because DOT requirements for
pipelines may be similar in purpose and scope, EPA recognizes that
compliance with DOT requirements (e.g., 49 CFR part 194) for these
gathering lines may be considered to satisfy the contingency planning
requirement.
    EPA requests comments on whether exempting flowlines and intra-
facility gathering lines from the secondary containment requirement is
appropriate, and whether the provision for a contingency plan and
written commitment of manpower, equipment, and materials required to
expeditiously control and remove any quantity of oil discharged that
may be harmful is an adequate alternative measure. Any suggestions must
include an appropriate rationale and supporting data in order for the
Agency to be able to consider it for final action.
c. Flowline and Intra-Facility Gathering Line Maintenance Program
    EPA recognizes that a contingency plan provides environmental
protection in response to a discharge, but in order to implement such a
plan, a discharge detection mechanism is necessary. Furthermore, EPA
believes that with the elimination of the requirement for secondary
containment, it is important to provide more prescriptive requirements
for discharge prevention to ensure the integrity of the primary
containment of the pipe. EPA believes that a strong program of flowline
or intra-facility gathering line maintenance will provide additional
preventative measures for these pipelines and increase discharge
detection ability.
    The current SPCC requirement to have a program of flowline
maintenance, found at Sec.  112.9(d)(3), is general in nature and
offers the facility owner/operator a great deal of discretion in
determining how best to prevent discharges from each flowline. The
regulated community has expressed its desire for guidance on how to
develop such a program. At this time, EPA is not aware of any industry
standard for flowline maintenance. In the SPCC Guidance for Regional
Inspectors (version 1.0, November 28, 2005), EPA provides a description
of the elements that a comprehensive piping maintenance program should
include, based on practices recommended by industry groups.
    As stated in the SPCC Guidance for Regional Inspectors, a flowline
maintenance program aims to manage the oil production operations in a
manner that reduces the potential for a discharge. Common causes of
such discharges include mechanical damage (e.g., impact, rupture) and
corrosion. A maintenance program usually combines careful
configuration, inspection, and ongoing maintenance of flowlines and
associated equipment to prevent and mitigate a potential discharge.
    EPA is now proposing to move the requirement for a flowline
maintenance program to Sec.  112.9(d)(4), add specificity to the
provision, and to clarify that the requirement applies to intra-
facility gathering lines, as well as flowlines at an oil production
facility. Intra-facility

gathering lines pose the same potential for discharge as flowlines; EPA
never intended to regulate the two types of piping differently.
    EPA proposes Sec.  112.9(d)(4) to require a performance-based
program of flowline/intra-facility gathering line maintenance that
addresses the facility owner/operator's procedures, and is documented
in the SPCC Plan, to:
     Ensure that flowlines and intra-facility gathering lines
and associated valves and equipment are compatible with the type of
production fluids and their potential corrosivity, volume, and
pressure, and other conditions expected in the operational environment.
This preventative measure is intended to help preserve the integrity of
the lines and reduce the potential effects of corrosion or other
factors that may lead to a discharge.
     Visually inspect and/or test flowlines and intra-facility
gathering lines and associated appurtenances on a periodic and regular
schedule for leaks, oil discharges, corrosion, or other conditions that
could lead to a discharge as described in Sec.  112.1(b). The frequency
and type of testing must allow for the implementation of a contingency
plan as described under 40 CFR part 109. This measure is intended to
ensure that any discharges, potential problems or conditions related to
the flowline/intra-facility gathering line that could lead to a
discharge will be promptly discovered; the Agency believes that an oil
spill contingency plan cannot be effective unless the discharge is
discovered in a timely manner so that the oil discharge response
operations described in the contingency plan may be implemented. The
proposed inspection requirements are consistent with the requirements
for aboveground valves, piping, and appurtenances at non-production
facilities under Sec.  112.8(d)(4), which include regular inspection
and assessment of the general condition of associated appurtenances
such as flange joints, expansion joints, valve glands and bodies, catch
pans, pipeline supports, valve locks, and metal supports. The Agency
notes that due to changes in flowrates and corrosivity of production
fluids over time in an oil field, the frequency of inspection may need
to change over the lifetime of the well in order to prevent discharges.
For buried piping, a facility owner or operator would develop an
inspection program to identify evidence of leaks at the surface or
other conditions that which may lead to a discharge to navigable waters
or adjoining shorelines.
     Take corrective action or make repairs to any flowlines
and intra-facility gathering lines and associated appurtenances as
indicated by regularly scheduled visual inspections, tests, or evidence
of a discharge. EPA intends for this proposed requirement to be
implemented in conjunction with the proposed requirement for periodic
inspection and testing; the results of the inspection or test would
inform the owner/operator of any corrections or repairs that need to be
made. Corrective action is necessary in order to prevent a discharge
from occurring, as well as in response to a discharge. This measure is
intended to prevent discharges as described in Sec.  112.1(b) by
ensuring that flowlines and intra-facility gathering lines are well
maintained.
     Promptly remove any accumulations of oil discharges
associated with flowlines, intra-facility gathering lines, and
associated appurtenances. EPA recognizes the importance of removing oil
accumulations to prevent a discharge as described in Sec.  112.1(b).
Section 311(j)(1)(C) of the CWA provides EPA with the authority to
establish procedures, methods, and equipment and other requirements to
prevent discharges of oil from onshore and offshore facilities. EPA
considers the removal of oil-contaminated soil as a method to prevent
oil from becoming a discharge as described in Sec.  112.1(b). Disposal
of oil must be in accordance with applicable Federal, State, and local
requirements; under Sec.  112.7(a)(3)(v), a facility owner or operator
is required to describe the methods of disposal of recovered materials
in accordance with applicable legal requirements. For the purposes of
this provision, removal of recoverable oil may be combined with
physical, chemical, and/or biological treatment methods to address any
residual oil. These treatment methods must be consistent with other
Federal, state or local requirements as applicable, and must be
properly managed to prevent a discharge as described in Sec.  112.1(b).
    Consistent with the current flowline maintenance program
requirements, the proposed amendments to the maintenance program
requirements would be subject to the environmental equivalence
provision found at Sec.  112.7(a)(2). That is, the facility owner/
operator may deviate from the requirements if an environmentally
equivalent alternate measure is implemented instead. EPA recognizes
that other Federal or State requirements may be environmentally
equivalent to certain SPCC requirements, including the proposed
flowline and intra-facility gathering line maintenance program
requirement. An environmental equivalence determination is subject to
review and certification by a PE. A Tier I qualified facility, as
described in this proposal, would not be able to use environmentally
equivalent measures and therefore would need to comply with the
flowline/intra-facility gathering line maintenance program requirements
as outlined above.
    While no industry standard for a flowline or intra-facility
gathering line maintenance program currently exists, EPA acknowledges
that in the future, an industry standard may be established. If such an
industry standard is developed, the certifying PE would be able
consider whether compliance with that standard is environmentally
equivalent to the requirements of the proposed Sec.  112.9(d)(4).
Additionally, for a facility owner/operator that has installed, or
chooses to install, secondary containment systems for flowlines or
intra-facility gathering lines, such measures are likely to be
considered environmentally equivalent to one or more of the proposed
maintenance program requirements.
    Additionally, EPA acknowledges that given the characteristics of
certain intra-facility gathering lines, these pipelines may be
regulated under requirements of both EPA and DOT. Because DOT
requirements for pipelines may be similar in purpose and scope, EPA
recognizes that compliance with DOT requirements (e.g., 49 CFR part
195) for these gathering lines may be considered by the certifying PE
to be environmentally equivalent alternatives to certain SPCC
requirements associated with oil production facility piping.
    Similarly, EPA recognizes that state requirements governing
flowlines and gathering lines may be environmentally equivalent to
certain SPCC requirements applicable to flowlines and gathering lines.
In accordance with the Memorandum of Understanding between the
Interstate Oil and Gas Compact Commission and the U.S. Environmental
Protection Agency, signed in 2002, and renewed in 2005 and 2007, the
Agency intends to continue regulatory cooperation among the states and
EPA that promotes protection of the environment in a cost-effective
manner, and minimizes duplication.
    EPA requests comments on whether the proposed requirements for a
flowline/intra-facility gathering line maintenance program are
appropriate, and whether the proposed requirements conflict with state
regulatory requirements. Any suggestions must include an appropriate
rationale and

supporting data in order for the Agency to be able to consider it for
final action.
d. Alternative Options Considered
    EPA considered other options to address the impracticability of
secondary containment for flowlines and intra-facility gathering lines.
EPA considered allowing a contingency plan and strengthened maintenance
program requirements as an optional alternative to secondary
containment. That is, the secondary containment requirement would
remain as a compliance option. This would provide additional
flexibility. EPA concluded, however, that since secondary containment
for flowlines/intra-facility gathering lines is, in most cases,
impracticable and few oil production facilities are likely to use this
measure, providing an optional alternative could potentially increase
confusion regarding the requirements for these lines. EPA recognizes
that given the long lengths and placement of flowlines and intra-
facility gathering lines, and the cost of secondary containment for
these lines, facilities are more likely to choose a contingency plan
with inspection requirements.
    The Agency also considered taking no action for flowlines and
intra-facility gathering lines, because the owner or operator of an oil
production facility already has the ability to determine that secondary
containment is impracticable under Sec.  112.7(d). However, EPA
recognizes that in most cases secondary containment is impracticable
for this type of equipment.
    For these reasons, the Agency decided to propose an alternative for
secondary containment for flowlines and intra-facility gathering lines.
The Agency welcomes comments on these or other alternatives. Any
suggestions must include an appropriate rationale and supporting data
in order for the Agency to be able to consider it for final action.
4. Flow-Through Process Vessels
    Separation and treating installations at an oil production facility
typically include equipment whose primary purpose is to separate the
well fluid into its marketable or waste fractions (e.g., oil, gas,
wastewater, and solids), and to treat the crude oil as needed for
further storage and shipping. Under the current SPCC requirements,
separation and treatment equipment are required to have sized secondary
containment for the entire capacity of the largest single container and
sufficient freeboard to contain precipitation (Sec.  112.9(c)(2)). EPA
recognizes that similar flow-through process equipment (i.e., oil-
filled manufacturing equipment, such as reaction vessels, fermentors,
high pressure vessels, mixing tanks, dryers, heat exchangers, and
distillation columns) at a non-production facility is not subject to
the more stringent sized secondary containment and inspection
requirements required for bulk storage containers; only the general
secondary containment requirements at Sec.  112.7(c) apply (71 FR
77276, December 26, 2006). In addition, EPA acknowledges concern among
the regulated community regarding the requirement to provide sized
secondary containment around heater-treaters, due to a potential fire-
hazard if spilled oil collects around the equipment. As a result, EPA
is proposing to exempt flow-through process vessels at an oil
production facility from the sized secondary containment requirements.
However, EPA recognizes that process equipment at a non-production
facility, such as at a manufacturing facility, is typically attended
during hours of operation. Therefore, there is a greater potential to
immediately discover and correct a discharge at a non-production
facility than at an oil production facility, which is generally
unattended. For this reason, EPA is also proposing to require the
inspection of flow-through process vessel components; prompt removal of
any oil accumulations, and corrective action should a discharge occur.
a. Examples of Flow-Through Process Vessels
    Flow-through process vessels, such as horizontal or vertical
separation vessels (e.g., heater-treater, free-water knockout, gun-
barrel, etc.), have the primary purpose of separating the oil from
other fractions (water and/or gas) and sending the fluid streams to the
appropriate container. It is the intended use of this equipment that
differentiates flow-through process vessels from bulk storage
containers and end-use storage containers, such as produced water
containers. Produced water containers store well fluids (which may also
contain various amounts of oil) after they have been separated and/or
treated, prior to disposal or reinjection. Under this proposal,
produced water containers are not considered flow-through process
vessels; they continue to be considered bulk storage containers if oil
is present.
b. Exemption From Sized Secondary Containment Requirements for Flow-
Through Process Vessels
    EPA proposes to amend the requirements in Sec.  112.9(c)(2) as
follows: ``Construct all tank battery, separation, and treating
facility installations, except for flow-through process vessels so that
you provide a secondary means of containment for the entire capacity of
the largest single container and sufficient freeboard to contain
precipitation.'' This proposed amendment removes the requirement to
provide such sized containment for flow-through process vessels without
making an impracticability determination. The general secondary
containment requirement of Sec.  112.7(c) would still apply to flow-
through process vessels; they must be provided with secondary
containment so that any discharge does not escape the containment
system before cleanup occurs.
    Many oil production facilities currently provide secondary
containment berms around the entire tank battery, which includes
separators and other treatment installations, including flow-through
process vessels, along with oil stock tanks and other bulk storage
containers. Such a facility design is appropriate and EPA encourages
oil production facility owners and operators to continue this practice
to provide the maximum environmental protection. However, under this
proposal, it would no longer be necessary to locate flow-through
process vessels within a secondary containment system sized for the
entire capacity of the largest single container and sufficient
freeboard to contain precipitation.
    The Agency requests comments on the proposal to exempt flow-through
process vessels from the sized secondary containment requirements. Any
suggestions must include an appropriate rationale and supporting data
in order for the Agency to be able to consider it for final action.
c. Additional Requirements for Flow-Through Process Vessels
    Because oil production facilities are typically unattended during
the hours of operation, EPA is also proposing to add a provision at
Sec.  112.9(c)(5)(i) through (iii) to provide additional requirements
for flow-through process vessels. These additional requirements would
include periodic inspection and/or testing, corrective action, and
prompt removal of any oil accumulations.
    The proposed amendment to require periodic inspection and/or
testing of the flow-through process vessels and associated
appurtenances on a regular schedule for leaks, corrosion, or other
conditions that could lead to a discharge as described in Sec.
112.1(b) is intended to increase the likelihood that a discharge will
be prevented or detected promptly, especially for components such as
dump valves, that typically cause spills.

The proposed inspection and/or testing requirements for flow-through
process vessels are consistent with the inspection requirements for
bulk storage containers under Sec.  112.9(c)(3). EPA recognizes that
because oil production facilities are typically unattended and remote
and have a constant flow of oil and well fluids, sized secondary
containment measures provide environmental protection for any potential
discharge. Because EPA is proposing that this equipment be subject to
the general secondary containment requirement (Sec.  112.7(c)) instead
of sized secondary containment, EPA seeks to ensure that any leak, or
potential for a leak, is detected promptly enough to prevent a
discharge of the entire contents of the separation or treating
equipment.
    EPA is also proposing to require the owner/operator of an oil
production facility to correct or repair the flow-through process
vessels and any associated components as indicated by regularly
scheduled inspections or tests. EPA intends for this proposed
requirement to be implemented in conjunction with the proposed
requirement for periodic inspection and testing; the results of the
inspection or test would inform the owner/operator of any corrections
or repairs that need to be made. Corrective action is necessary in
order to prevent a discharge from occurring, as well as in response to
a discharge. This measure is intended to prevent discharges as
described in Sec.  112.1(b) by ensuring that separation and treatment
equipment are well maintained.
    EPA also proposes to require prompt removal upon discovery of any
spills, discharges, or accumulations of oil associated with the flow-
through process vessels. EPA considers the removal of oil-contaminated
soil as a method to prevent oil from becoming a discharge as described
in Sec.  112.1(b). Disposal of oil must be in accordance with
applicable Federal, state, and local requirements; under Sec.
112.7(a)(3)(v), a facility owner or operator is required to describe
the methods of disposal of recovered materials in accordance with
applicable legal requirements. For the purposes of this provision,
removal of recoverable oil may be combined with physical, chemical,
and/or biological treatment methods to address any residual oil. These
treatment methods must be consistent with other Federal, state or local
requirements as applicable, and must be properly managed to prevent a
discharge as described in Sec.  112.1(b).
    The Agency requests comments on these proposed additional
requirements (inspections, corrective action, and prompt removal of oil
discharges) for flow-through process vessels. EPA also requests
comments on whether this approach, a general secondary containment
requirement and additional requirements for flow-through process
vessels should be an optional compliance alternative, in lieu of sized
secondary containment. Under an optional approach, a facility owner or
operator could choose whether to provide sized secondary containment
for flow-through process vessels, or to provide general containment and
comply with the additional requirements. (A facility owner or operator
who already provides sized secondary containment for his flow-through
process vessels would not be required to comply with the additional
requirements, as long as he maintains the sized secondary containment.)
Any suggestions must include an appropriate rationale and supporting
data in order for the Agency to be able to consider it for final
action.
d. Secondary Containment Requirements for Flow-Through Process Vessels
if Facility Experiences Reportable Discharge
    EPA also is proposing a provision at Sec.  112.9(c)(5)(iv) stating
that if an oil production facility has discharged more than 1,000 U.S.
gallons of oil in a single discharge as described in Sec.  112.1(b), or
discharged more than 42 U.S. gallons of oil in each of two discharges
as described in Sec.  112.1(b), occurring within any twelve month
period, from a flow-through process vessel, then the facility owner or
operator must provide sized secondary containment for all flow-through
process vessels at the facility within six months from the discovery of
the spill(s). When determining spill history, the gallon amount
specified in the criterion (either 1,000 or 42) refers to the amount of
oil that actually reaches navigable waters or adjoining shorelines, or
in connection with specified activities in waters and not the total
amount of oil spilled. Discharges as described in Sec.  112.1(b) that
are the result of natural disasters, acts of war, or terrorism would
not be considered toward this requirement.
    The discharge criterion proposed in this notice is similar to the
provision in Sec.  112.4(a) for discharges that must be reported to the
EPA Regional Administrator (RA). Under Sec.  112.4, a facility owner or
operator must report certain information to EPA whenever the facility
experiences a discharge reportable under Sec.  112.4.
    The Agency requests comment on the proposed requirement for
providing sized secondary containment for flow-through process vessels
following a reportable discharge as described above. EPA also requests
comments on whether a facility owner or operator who experiences such a
discharge and subsequently provides sized secondary containment for
separation and treating facility equipment at the facility should
continue to be required to comply with the additional requirements
described above (proposed as Sec.  112.9(c)(5)(i) through (iii)). Any
suggestions must include an appropriate rationale and supporting data
in order for the Agency to be able to consider it for final action.
e. Alternative Option Considered
    EPA considered another option to address secondary containment for
flow-through process vessels. Under this option, EPA would allow a
contingency plan and written commitment of manpower, equipment, and
materials required to expeditiously control and remove any quantity of
oil discharged that may be harmful, without the need to develop a
written impracticability determination as an optional alternative to
all secondary containment requirements for flow-through process
vessels. This option would be available for eligible flow-through
process vessels: those that have had no discharges of oil reportable to
EPA under Sec.  112.4 in the past three years. In addition, this option
would require a facility owner or operator to conduct periodic
integrity testing of the process vessels and periodic integrity and
leak testing of the associated valves and piping.
    EPA recognizes that this alternative to secondary containment would
provide flexibility. However, EPA also recognizes that a typical oil
production facility is remote and/or unattended, and therefore
secondary containment is a preferable measure to prevent a discharge to
navigable waters or adjoining shorelines in the event of an oil spill
than a contingency plan. Some form of general secondary containment is
practicable for this type of equipment. Therefore, EPA chose not to
propose this option.
    The Agency welcomes comments on this alternative or other
alternatives to address separation and treatment equipment, while
maintaining environmental protection. Any suggestions must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider it for final action.
5. Small Oil Production Facilities
    In this proposed rule, EPA has included a number of amendments to

the SPCC requirements that are designed to reduce the burden on oil
production facilities, while maintaining protection of the environment.
Specifically, EPA is proposing to amend the definition of ``facility''
to clarify the flexibility associated with defining a facility's
boundaries; exclude oil production facilities from the loading/
unloading rack requirements at Sec.  112.7(h); extend the timeframe by
which a new oil production facility must prepare and implement an SPCC
Plan; exempt flowlines and intra-facility gathering lines at oil
production facilities from all secondary containment requirements,
while establishing requirements for a flowline/intra-facility gathering
line maintenance program and contingency planning; exempt flow-through
process vessels at oil production facilities from the sized secondary
containment requirements, while maintaining general secondary
containment requirements and requiring additional oil spill prevention
measures; clarify the applicability of the rule to containers at a
natural gas facility; and clarify the definition of ``permanently
closed'' as it applies to an oil production facility. In addition, the
Agency is taking comment on a number of approaches regarding the
management of produced waters at oil production facilities.
    The regulated community has expressed particular concern regarding
the regulation of small oil production facilities under the SPCC rule,
suggesting that the cost of complying with the SPCC requirements is
disproportionate to the risk these small facilities pose to the
environment. While EPA is sensitive to these concerns, the Agency
believes that spills from small oil production facilities have and can
continue to pose a threat of an oil discharge to navigable waters and
adjoining shorelines, and that smaller oil production facilities should
remain subject to the SPCC rule.
    In evaluating the appropriate application of the SPCC rules to
these facilities, the Agency is guided by Executive Order 13211, which
directs federal agencies to evaluate and respond to effects that
governmental regulatory action can have on the supply of energy
(Executive Order 13211 of May 18, 2001, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use,'' (66 FR 28355, May 22, 2001)).\3\ Accordingly, the Agency
believes it is appropriate to consider the impacts of existing
regulations on the energy sector and to identify regulatory
alternatives that reduce those impacts when implementing the statutory
authorization of Section 311(j)(1)(C) of the Clean Water Act at oil
production facilities.
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    \3\ The overall effect of the proposed rule is to decrease the
regulatory burden on facility owners or operators subject to its
provisions. Accordingly, the proposed rule is not a ``significant
energy action'' as defined in this Executive Order.
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    While assessing opportunities for tailoring and streamlining the
SPCC requirements, EPA considered whether there are alternative
regulatory approaches to Section 311(j)(1)(C) for small oil production
facilities that would further reduce the compliance burden associated
with the current rule requirements, while still maintaining protection
of human health and the environment. In particular, EPA considered
regulatory alternatives for oil production facilities that have wells
that produce 10 barrels or less of crude oil per day and are known as
``stripper wells.'' \4\
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    \4\ EPA established differentiated requirements for ``stripper
wells'' under the Clean Water Act and codified it in 1979. See 40
CFR 435.60. See also Interstate Oil and Gas Compact Commission,
2006: ``Marginal Wells: Fuels for Economic Growth'', p. 4 (defining
``stripper wells'' as wells that produce 10 barrels of oil per day
or less).
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    The owner or operator of an oil production facility generally
provides adequate container capacity at his facility to ensure sound
and continuous operations, and so that a container will not overfill if
there is a delay in the removal of oil from the tanks. This practice
would meet the SPCC rule provisions at Sec.  112.9(c)(4) to prevent
overfills from the containers. However, this practice may prevent some
small oil production facilities from being eligible for the burden
reduction available to qualified facilities because they would likely
have greater than 10,000 gallons in aggregate aboveground oil storage
capacity. Therefore, the Agency is requesting comment on an approach
described below that identifies specific criteria for an oil production
facility that produces oil from a limited number of stripper wells to
be considered a qualified facility, notwithstanding the tank storage
capacity at the facility. The approach has been shaped by the specific
characteristics of this category of facilities and, as such, could
result in the application of SPCC requirements in a manner better
suited to these facilities. In addition, the Agency is also requesting
comment on some additional options for reducing the burden on small oil
production facilities that have been suggested by the Department of
Energy (DOE). Following consideration of public comments received in
response to this notice, one or more of these approaches may be
finalized as the applicable SPCC requirements for these facilities.
Commenters may provide input on variations to these approaches for
consideration by the Agency.
a. Alternative Qualified Facility Eligibility Criteria for Oil
Production Facilities
    This approach is intended as an alternative for oil production
facilities to be considered qualified facilities because they do not
meet the current qualified facility requirements under 40 CFR 112.3(g).
Under this alternative, an oil production facility would be eligible as
a qualified facility if it meets the following criteria: (1) The oil
production facility must have no more than four wells associated with a
single tank battery; (2) all four of the wells must be stripper wells
each producing 10 barrels or less of crude oil per day--that is, a tank
battery at an oil production facility could not include any non-
stripper wells under this option; (3) the facility must have no
injection wells; and (4) the facility must not have had a single
discharge exceeding 1,000 U.S. gallons or two discharges each exceeding
42 U.S. gallons within any twelve month period in the three years prior
to Plan certification. Discharges as described in Sec.  112.1(b) that
are the result of natural disasters, acts of war, or terrorism will not
disqualify a facility owner or operator from the alternative option
described above. The owner or operator of an oil production facility