[Federal Register: December 26, 2006 (Volume 71, Number 247)]
[Rules and Regulations]
[Page 77266-77293]
[DOCID:fr26de06-8]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2005-0001; FRL-8258-3]
RIN 2050-AG23

Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Plan Requirements--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
amending the Spill Prevention, Control, and Countermeasure (SPCC) Plan
requirements by: first, providing the option for owners and operators
of facilities that store 10,000 gallons of oil or less and meet other
qualifying criteria to self-certify their SPCC Plans in lieu of review
and certification by a Professional Engineer; second, providing an
alternative to the general secondary containment requirement without
requiring a determination of impracticability for facilities that have
particular types of oil-filled equipment; third, defining and exempting
particular vehicle fuel tanks and other on-board bulk oil storage
containers used for motive power; and fourth, exempting mobile
refuelers from the sized secondary containment requirements for bulk
storage containers. The Agency also is removing and reserving the SPCC
requirements for animal fats and vegetable oils that are specific to
onshore oil production facilities, onshore oil drilling and workover
facilities, and offshore oil drilling, production, or workover
facilities. Finally, the Agency is extending the SPCC compliance dates
for farms. These changes significantly reduce the burden imposed on the
regulated community for complying with the SPCC requirements, while
maintaining protection of human health and the environment. In a
separate document in this Federal Register, the Agency is proposing to
extend the compliance dates for all facilities.

DATES: This final rule is effective February 26, 2007.

ADDRESSES: The public docket for this final rule, Docket ID No. EPA-HQ-
OPA-2005-0001, contains the information related to this rulemaking,
including the response to comment document. All documents in the docket
are listed in the http://www.regulations.gov index. Although listed in

the index, some information may not be publicly available, e.g.,
Confidential Business Information or other information the disclosure
of which is restricted by statute. Certain other material, such as
copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA Docket, EPA/

DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number of the
Public Reading Room is<PHONE_NUMBER>, and the telephone number to make
an appointment to view the docket is<PHONE_NUMBER>. The EPA Docket
Center suffered damage due to flooding during the last week of June
2006. The Docket Center is continuing to operate. However, during the
cleanup, there will be temporary changes to Docket Center telephone
numbers, addresses, and hours of operation for people who wish to visit
the Public Reading Room to view documents. Consult EPA's Federal
Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at
http://www.epa.gov/epahome/dockets.htm for

current information on docket status, locations and telephone numbers.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP and Oil Information Center at<PHONE_NUMBER>
or TDD<PHONE_NUMBER> (hearing impaired). In the Washington, DC
metropolitan area, call<PHONE_NUMBER> or TDD<PHONE_NUMBER>. For more
detailed information on specific aspects of this rule, contact Vanessa
E. Rodriguez at<PHONE_NUMBER> (rodriguez.vanessa@epa.gov), or Mark W.
Howard at<PHONE_NUMBER> (howard.markw@epa.gov), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-
0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. Today's Action
    A. Qualified Facilities
    1. Overview of the Qualified Facilities Proposal
    2. Summary of This Final Rule for Qualified Facilities
    3. Eligibility Criteria
    a. Total Facility Oil Storage Capacity Threshold
    b. Reportable Discharge History
    4. Requirements for Qualified Facilities
    a. Self-Certification of Plan and Plan Amendment
    b. Elements of Self-Certification and Plan Amendments for Owners
and Operators of Qualified Facilities
    c. Environmental Equivalence and Impracticability Determinations
    B. Qualified Oil-Filled Operational Equipment
    1. Oil-Filled Operational Equipment Definition
    2. Oil-Filled Manufacturing Equipment
    3. Eligibility Criteria
    a. Reportable Discharge History
    b. Consideration of Alternative Qualification Criteria
    4. Requirements for Qualified Oil-Filled Operational Equipment
in Lieu of Secondary Containment
    a. Contingency Plans and Written Commitment of Manpower,
Equipment and Materials
    b. Inspections or Monitoring Program
    c. Alternative Options Considered
    5. Qualified Oil-Filled Operational Equipment and Qualified
Facilities Overlap
    C. Motive Power
    1. Definition of Motive Power
    2. Exemption
    D. Mobile Refuelers
    1. Definition of Mobile Refueler
    2. Amended Requirements
    E. Animal Fats and Vegetable Oils
    F. Extension of Compliance Dates for Farms
    1. Eligibility Criteria
    2. Compliance Date Extension for Farms
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children From
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. General Information

    The Environmental Protection Agency (EPA or the Agency) is amending
the Spill Prevention, Control, and Countermeasure (SPCC) Plan
requirements of the Oil Pollution Prevention regulation at 40 CFR part
112 to streamline the regulatory requirements for owners and operators
of a subset of facilities by: (1) Providing an option to allow the
owners or operators of facilities with an oil storage capacity of
10,000 gallons or less and who meet other qualifying criteria to self-
certify their SPCC Plans in lieu of review and certification by a
Professional Engineer; (2) allowing owners and operators of facilities
that have particular types of oil-filled operational equipment to use
an oil spill contingency plan along with an inspection or monitoring
program as an alternative to secondary containment for qualified
equipment without requiring a determination of impracticability; (3)
providing an exemption for newly defined ``motive power containers'';
and (4) exempting mobile refuelers from the specifically sized
secondary containment requirements for bulk storage containers. In
addition, the Agency is removing and reserving certain SPCC
requirements for animal fats and vegetable oils; and is extending the
compliance dates for farms. The purpose of this rulemaking is to
provide streamlined, alternative approaches for compliance with oil
spill prevention requirements for these entities, and to improve net
welfare by reducing the costs of regulation and improving compliance,
resulting in greater environmental protection.

II. Entities Potentially Affected by This Rule

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               Industry sector                         NAICS code
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Oil Production...............................                     211111
Farms........................................                   111, 112
Electric Utility Plants......................                       2211
Petroleum Refining and Related Industries....                        324
Chemical Manufacturing.......................                        325
Food Manufacturing...........................                   311, 312
Manufacturing facilities using and storing                      311, 325
 animal fats and vegetable oils (AFVO).......
Metal Manufacturing..........................                   331, 332
Other Manufacturing..........................                      31-33
Real Estate Rental and Leasing...............                    531-533
Retail Trade.................................              441-446, 448,
                                                                 451-454
Contract Construction........................                         23
Wholesale Trade..............................                         42
Other Commercial.............................             492, 541, 551,
                                                                 561-562
Transportation...............................                    481-488
Arts Entertainment & Recreation..............                    711-713
Other Services (Except Public Administration)                    811-813
Petroleum Bulk Stations and Terminals........                       4247

Education....................................                         61
Hospitals & Other Health Care................                   621, 622
Accommodation and Food Services..............                   721, 722
Fuel Oil Dealers.............................                      45431
Gasoline stations............................                       4471
Information Finance and Insurance............                     51, 52
Mining.......................................                        212
Warehousing and Storage......................                        493
Religious Organizations......................                     813110
Military Installations.......................                     928110
Pipelines....................................                4861, 48691
Government...................................                         92
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    The list of potentially affected entities in the above table may
not be exhaustive. The Agency's aim is to provide a guide for readers
regarding those entities that potentially could be affected by this
action. However, this action may affect other entities not listed in
this table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority and Delegation of Authority

    Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33
U.S.C. 1321(j)(1)(C), requires the President to issue regulations
establishing procedures, methods, equipment, and other requirements to
prevent discharges of oil from vessels and facilities and to contain
such discharges. The President delegated the authority to regulate non-
transportation-related onshore facilities to EPA in Executive Order
11548 (35 FR 11677, July 22, 1970), which has been replaced by
Executive Order 12777 (56 FR 54757, October 22, 1991). A Memorandum of
Understanding (MOU) between the U.S. Department of Transportation (DOT)
and EPA (36 FR 24080, November 24, 1971) established the definitions of
transportation-related and non-transportation-related facilities. A MOU
among EPA, the U.S. Department of the Interior (DOI), and DOT,
effective February 3, 1994, has re-delegated the responsibility to
regulate certain offshore facilities from DOI to EPA.

IV. Background

    On July 17, 2002, EPA published a final rule amending the SPCC
rule, formally known as the Oil Pollution Prevention regulation (40 CFR
part 112), promulgated under the authority of section 311(j) of the
CWA. (The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164).) This rule included revised requirements for SPCC Plans and
for Facility Response Plans (FRPs). It also included new subparts
outlining the requirements for various classes of oil; revised the
applicability of the regulation; amended the requirements for
completing SPCC Plans; and made other modifications (67 FR 47042). The
revised rule became effective on August 16, 2002. After publication of
this rule, several members of the regulated community filed legal
challenges to certain aspects of the rule. Most of the issues raised in
the litigation have been settled, following which EPA published
clarifications in the Federal Register to several aspects of the
revised rule (69 FR 29728, May 25, 2004).\1\ In addition, concerns were
raised about the implementability of certain aspects of the 2002 rule.
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    \1\ American Petroleum Institute v. Leavitt, No. 1:102CV02247
PLF and consolidated cases (D.D.C. filed Nov. 14, 2002). The
remaining issue to be decided concerns the definition of ``navigable
waters'' in Sec.  112.2.
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    EPA has extended the dates for compliance with the 2002 rule by
extending the dates for amending and implementing revised SPCC Plans in
40 CFR 112.3(a), (b), and (c), most recently by notice dated February
17, 2006 (71 FR 8462). Please see the Federal Register notice for
further discussion on the compliance extensions. EPA took the most
recent action in order to allow time to finalize the revisions in
today's final rule and to provide the regulated community time to
review and understand the material presented in the SPCC Guidance for
Regional Inspectors, which was made available in December of 2005. The
Agency also was concerned that the effects of the September 2005
hurricanes on many industry sectors might adversely impact their
ability to meet the compliance dates if no extension was provided.
    October 31, 2007 is the current deadline for amending and
implementing revised SPCC Plans for facilities (including mobile
facilities) that were in operation on or before August 16, 2002.
Facilities that came into operation after August 16, 2002 also must
prepare and implement an SPCC Plan on or before October 31, 2007. As
discussed in Section V.F of this preamble, today's final rule provides
an additional extension of the compliance date for farms. Today's rule,
which is effective February 26, 2007, does not modify the compliance
dates for owners and operators of facilities other than farms.
Elsewhere in today's Federal Register, EPA is proposing to extend the
compliance dates for owners and operators of facilities until July 1,
2009 based on further SPCC regulatory revisions that EPA is
considering, and that it expects to propose in 2007.
    On September 20, 2004, EPA published two Notices of Data
Availability (NODAs). The first NODA solicited comments on submissions
to EPA that suggested more focused requirements for owners and
operators of facilities subject to the SPCC rule that handle oil below
a certain threshold amount, referred to as ``certain facilities'' (69
FR 56182). Streamlined approaches for owners and operators of
facilities with oil capacities below a certain threshold were discussed
in the NODA-related documents. The second NODA solicited comments on
whether alternate regulatory requirements would be appropriate for
owners and operators of facilities with oil-filled and process
equipment (69 FR 56184). EPA has reviewed the public comments and data
submitted in response to the NODAs in developing today's final rule.
    Additionally, on December 2, 2005, EPA issued the SPCC Guidance for
Regional Inspectors. This guidance document is intended to assist
regional inspectors in reviewing implementation of the SPCC rule at a
regulated facility. The guidance document is designed to facilitate an
understanding of the rule's applicability, to help clarify the role of

the inspector in the review and evaluation of a facility owner or
operator's compliance with the performance-based SPCC requirements, and
to provide a consistent national policy on several SPCC-related issues.
The guidance is available to owners and operators of facilities that
may be subject to the requirements of the SPCC rule and to the general
public on the Agency's Web site at http://www.epa.gov/oilspill. This

guidance document is a living document and will be revised, as
necessary, to reflect any relevant future regulatory amendments,
including today's action.
    Based on the comments received on the NODAs, as well as other
information received, EPA proposed to amend the SPCC rule to address a
number of issues raised, including those pertaining to qualified
facilities, qualified oil-filled operational equipment, motive power
containers, airport mobile refuelers, animal fats and vegetable oils,
and the compliance date for farms. (See 70 FR 73524, December 12,
2005.) EPA discusses each of these issues in Section V of this
preamble. The preamble generally discusses the comments received on the
proposal, EPA's response, and any modifications made to the proposal.
For a more detailed discussion of the comments received and EPA's
response, see ``Summary and Response to Comments,'' which is included
in the docket for today's final rule.
    The scope of today's final rule was intended to address only
certain targeted areas of the SPCC requirements, and a number of issues
and concerns raised by the regulated community. As highlighted in the
EPA Regulatory Agenda and the 2005 OMB report on ``Regulatory Reform of
the U.S. Manufacturing Sector,'' EPA is considering further amendments
to address other areas where regulatory reform may be appropriate. For
these additional areas, the Agency expects to issue a proposed rule in
2007. Areas where regulatory reform may be appropriate include, and are
not limited to, oil and natural gas exploration and production, farms,
and Tier I facilities. EPA, in conjunction with DOE, has been
conducting an energy impact analysis of the SPCC requirements, and, to
the extent that the analysis is available, will consider it to inform
the Agency's 2007 rulemaking.
    Because it is highly unlikely that the Agency will be able to
promulgate such regulatory amendments before the current October 31,
2007 compliance date for SPCC becomes effective, EPA believes it is
appropriate to provide an extension of the compliance date. Such an
extension has been proposed elsewhere in today's Federal Register.
    The Agency is not in a position, at this time, to indicate all the
areas for possible regulatory reform that may be addressed as part of
the 2007 SPCC proposal. Nevertheless, the Agency recognizes that owners
and operators of facilities need time to determine which changes may be
made to the rules that may impact the requirements they are subject to
in order to determine when they need to comply with the new
requirements.
    This approach would allow those potentially affected in the
regulated community an opportunity to make changes to their facilities
and to their SPCC Plans necessary to comply with the revised
requirements, rather than with the existing requirements. Regarding
modifications of the SPCC regulations, EPA is proposing in a separate
notice in today's Federal Register to extend the deadlines for
compliance to July 1, 2009.

V. Today's Action

A. Qualified Facilities

1. Overview of the Qualified Facilities Proposal
    On December 12, 2005 (70 FR 73524), EPA proposed to amend the SPCC
rule to provide an option to allow the owner or operator of a facility
that meets the qualifying criteria (hereafter referred to as a
``qualified facility'') to self-certify the facility's SPCC Plan in
lieu of review and certification by a licensed Professional Engineer
(PE). EPA proposed to amend Sec.  112.3 to describe the SPCC
eligibility criteria that a regulated facility must meet in order to be
considered a qualified facility.
    As proposed, the eligibility criteria for a qualified facility
would be a facility subject to the SPCC rule that (1) has an aggregate
oil storage capacity of 10,000 gallons or less; and (2) had no
discharges as described in Sec.  112.1(b) during the ten years prior to
self-certification. Self-certified Plans could not include
``environmentally equivalent'' alternatives to required Plan elements
as provided in Sec.  112.7(a)(2) or contingency planning in lieu of
secondary containment as provided in Sec.  112.7(d) on the basis of
``impracticability.'' However, the proposal included specified
``environmentally equivalent'' measures with respect to security and
integrity testing that would be available to facility owners and
operators that choose to self-certify. Self-certification would be
optional for owners and operators of facilities meeting the eligibility
criteria, so that those owners and operators of qualified facilities
that found the existing rules more cost-effective in achieving
compliance with the SPCC requirements, would continue to have the
option of complying with the streamlined approach or could choose to
comply with the existing SPCC requirements (including the PE
certification) to take advantage of the flexibility offered by PE-
certified impracticability determinations and environmentally
equivalent measures.
    In general, the Agency agrees with the commenters who supported the
qualified facilities proposal for self-certification and believe that
this revision will relieve regulatory burden on small oil storage
facilities. As one commenter noted, self-certification should result in
greater compliance rates across the board. Therefore, today's rule
finalizes the proposed provision with a few modifications.
    As described in the preamble to the proposed rule, EPA also
considered, but did not propose, a multi-tiered structure option based
on an analysis prepared for the U.S. Small Business Administration's
(SBA) Office of Advocacy that included a tiered system for facilities
that have total oil storage capacities between 1,321 and 5,000 gallons,
between 5,001 and 10,000 gallons, and greater than 10,000 gallons.
Under this option, Tier I facilities (1,321 to 5,000 gallons oil
storage capacity) would not need a written SPCC Plan (and therefore no
PE certification), but would adhere to all other SPCC requirements.
Tier II facilities (5,001 to 10,000 gallons oil storage capacity) would
be required to have a written SPCC Plan, but no PE certification
requirement. Tier III facilities (greater than 10,000 gallons oil
storage capacity) would be required to have a written SPCC Plan,
certified by a PE. A significant number of commenters on the proposed
rule supported a multi-tiered approach.
    The Agency continues to believe that a facility owner or operator
cannot effectively implement an oil spill prevention program, or any
other program (business or otherwise), without documentation of that
program's action items. As a matter of practice, it would be extremely
difficult for a facility owner or operator to be able to follow the
regulatory requirements and to comply with all the recordkeeping
components without the documentation that is the Plan itself. The Plan
also serves as an important communication and training tool for both
management and oil-handling personnel at the facility. The sole action
of having to document compliance with all of the requirements can
assist in

uncovering flaws in the program's implementation, and may serve as a
tool to correct them. Additionally, the documentation of compliance
with the rule's requirements in a written Plan serves as a facility-
specific oil spill response and prevention planning exercise which is
designed to improve oil spill prevention. Nevertheless, the Agency
understands the concerns, particularly of owners and operators of
facilities with a smaller oil storage capacity and likely more limited
resources, of the potential effort needed to develop a complicated
Plan. Thus, the Agency has been exploring the possibility of developing
a further simplified Plan for facilities that handle between 1,320 and
5,000 gallons of oil. However, because the Agency is considering
removing or changing some of the regulatory requirements and developing
a standardized form/checklist for ease of implementation, the Agency
chose not to finalize this option without taking further comment.
Therefore, although EPA is not adopting a multi-tiered approach in
today's final rule, the Agency intends to propose a simplified approach
for facilities that handle between 1,320 and 5,000 gallons of oil
within the near future. In that proposal, the Agency expects to discuss
the implementation of the SPCC rule for these facilities.
    The preamble to the proposed rule also described an approach
whereby the Agency would require owners and operators of qualified
facilities to make a one-time notification to EPA if they have been in
operation or subject to the SPCC requirements for a period less than
ten years from the time of Plan certification, and therefore could not
show a ten-year clean spill history as a qualifier. The comments
generally opposed a notification requirement, arguing that it would
impose additional burden with no clear benefit for the regulated
community. EPA is not adopting this one-time notification requirement,
because the Agency does not believe it would offer any further
environmental protection. The additional burden of a notification
requirement was not considered necessary and would be contrary to the
intent of today's rule.
2. Summary of This Final Rule for Qualified Facilities
    Today's rule finalizes the proposed option with modifications to
the reportable discharge history criterion and to the self-
certification limitations for qualified facilities. The final rule also
places the alternative self-certification provisions in Sec.  112.6,
rather than in Sec.  112.3(g) as proposed. A facility owner or operator
may qualify to prepare a Plan that meets the alternative requirements
in Sec.  112.6 of today's final rule, in lieu of a Plan prepared in
accordance with the general requirements contained in Sec.  112.7 and
the applicable requirements in subparts B and C of the rule. Finally,
today's action allows a qualified facility owner or operator to use
environmentally equivalent measures or an impracticability
determination provided they are certified by a PE.
    To qualify for this option, a facility must meet the following
eligibility criteria: the facility had no single discharge as described
in Sec.  112.1(b) exceeding 1,000 U.S. gallons or no two discharges as
described in Sec.  112.1(b) each exceeding 42 U.S. gallons within any
twelve month period in the three years prior to the SPCC Plan
certification date, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than three years, and the
facility has 10,000 gallons or less in aggregate aboveground oil
storage capacity. 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 using the self-
certification option.
    An owner or operator of a qualified facility may prepare, self-
certify and implement an SPCC Plan that complies with all of the
applicable requirements of the rule in accordance with Sec.  112.6 of
today's final rule. No PE certification is required for qualified
facilities' Plans. A qualified facility owner or operator also may
choose to prepare a Plan in accordance with the general Plan
requirements in Sec.  112.7 and applicable requirements in subparts B
and C, including having the Plan certified by a Professional Engineer
as required under Sec.  112.3(d). The qualified facility approach in
today's final rule is optional; owners or operators of facilities that
qualify may choose not to exercise this option.
    In proposing this option for facilities handling smaller amounts of
oil, the Agency sought to focus on those smaller operations that may be
concerned about the impact of utilizing a PE on their limited budget.
Some of the current noncompliance with the SPCC regulation may be
attributed to those concerns. The Agency believes that providing a
simpler, less costly option for owners and operators of these smaller,
less complex facilities will improve the overall compliance for the
SPCC regulation, ultimately resulting in greater environmental
protection.
3. Eligibility Criteria
a. Total Facility Oil Storage Capacity Threshold
    EPA proposed to limit the maximum aggregate oil storage capacity at
a qualified facility to 10,000 gallons or less. EPA considered many
different factors before selecting this maximum storage capacity. As
explained in the preamble to the proposal (70 FR 73529), EPA has
established 10,000 gallons as a threshold in several other rules
relating to oil discharges. The National Oil and Hazardous Substances
Pollution Contingency Plan size classes define an oil discharge to
inland waters exceeding 10,000 gallons as a major discharge. An oil
discharge of 10,000 gallons or more to waters of the U.S. and adjoining
shorelines that could reasonably be expected to cause substantial harm
to the environment also is one of the factors used in identifying
facilities whose owners and operators must prepare and submit a
Facility Response Plan (see 40 CFR 112.20(f)(1)(D). A number of State
regulations also differentiate regulatory requirements based on a
facility's total storage capacity, with some States specifying a
10,000-gallon threshold (e.g., Maryland, Minnesota, Oregon, New York,
Wisconsin). Finally, 10,000 gallons is a common storage container size.
    More commenters supported than opposed the proposed threshold
eligibility criterion of total oil storage capacity of 10,000 gallons
or less, while others offered alternative thresholds. Many commenters
supported the idea of establishing tiers for qualified facilities. (As
noted earlier, the Agency intends to propose a more streamlined
approach for owners and operators of facilities with a total oil
storage capacity of 5,000 gallons or less.) Many supporters believed
that the proposed 10,000-gallon threshold would reduce the financial
burden on owners and operators of small facilities. Among commenters
that opposed the threshold, at least one stated that the proposed
10,000-gallon threshold did not provide enough regulatory relief to
owners and operators of small facilities, but others noted that smaller
storage sizes do not necessarily correlate with lower spill risk.
    Facilities handling smaller amounts of oil are typically simpler in
layout and operation. Most facilities with an oil storage capacity of
10,000 gallons or less are in industrial sectors that are end-consumers
of oil (i.e. farms, real estate, rental and leasing, retail trade,
construction [see the Regulatory Impact Analysis for this action, found
in the docket for today's final rule]). These

facilities are commonly not in an oil production or distribution
business and tend to use oil on-site for heating purposes, or to fuel
emergency power generators or heavy machinery. The configuration of the
oil-related equipment tends to be relatively standard and simple. Oil
is commonly stored in a few bulk storage containers which are often
bought off-the-shelf from a tank manufacturer or installer (e.g.,
standard UL-142 tanks) and connected with few short lengths of piping
in a standard configuration that changes relatively little from one
facility to another.
    Additionally, these facilities typically do not have significant
transfers of oil because they do not further distribute the oil. A
survey conducted by EPA of oil storage facilities (1995 SPCC Survey of
Oil Storage Facilities) found that the larger the storage capacity at a
facility, the greater the likelihood of larger spills, more spills, and
more cleanup costs annually. Our regression analyses of the 1995 survey
data (see ``Analysis of the Relationship between Facility
Characteristics and Oil Spill Risk,'' found in today's docket)
confirmed similar linkages for facilities with a greater number of
tanks and larger annual throughput. These analyses were performed
because storage capacity, number of tanks, and throughput were
identified as important individual factors in explaining the total
annual spill volume, number of spills, and cleanup costs. Thus, these
factors were used together in a multivariate regression model to ensure
that these three variables continue to be statistically significant
variables when assessing whether there is potential bias (i.e., an
overstatement of the importance of the variable in explaining the
variation in the dependent variable). After performing these analyses,
storage capacity and number of tanks were found to be statistically
significant in relation to all three measures of spill risk (i.e.,
total number, volume, and cleanup costs of oil spills). The Agency
believes simple oil storage configuration, in conjunction with the
smaller quantities of oil handled at qualified facilities, makes self-
certification an appropriate alternative. Therefore, the Agency has
decided to maintain the maximum aggregate oil storage capacity for
qualified facilities at 10,000 gallons as proposed.
    The development of streamlined requirements for owners and
operators of those facilities with a smaller size or storage volume is
not new; industry standards, engineering codes and practices, State
regulations, local fire codes and local ordinances often recognize the
differences between sizes and complexity of their target facilities
and/or equipment and as a result incorporate simplified requirements.
The Agency believes that today's action provides an alternative
compliance option for owners and operators of facilities handling
smaller amounts of oil that will ultimately result in increased
environmental protection by making it easier and less burdensome to
comply.
    EPA recognizes that an oil discharge of less than 10,000 gallons
can be harmful (see 40 CFR part 110, where the Agency defines what
constitutes a discharge of oil in quantities that may be harmful).
Nevertheless, EPA believes that it is reasonable to allow owners and
operators of facilities with a capacity of no more than 10,000 gallons
the option to prepare and implement SPCC Plans without the involvement
of a PE (except in those cases where environmental equivalence or an
impracticability determination is requested by an owner or operator and
that the owner or operator chooses to have a PE certify part or all of
the facility SPCC Plan). Therefore, the Agency is adopting in today's
rule a threshold capacity of 10,000 gallons as a criterion for those
facilities that are qualified for self-certification.
    Some commenters argued that the 10,000-gallon threshold would still
preclude owners and operators of smaller facilities from taking
advantage of the self-certification alternative. For example, a
facility with two 5,000-gallon storage containers and a few totes just
exceeds the 10,000-gallon threshold. Commenters argued that these kinds
of facilities have low volumes of oil and simple operations, and that
perhaps a slightly higher threshold would be more appropriate. The
Agency recognizes that regardless of the threshold quantity selected,
there are likely to be facilities just above that threshold that will
be excluded. To the extent that facility owners or operators want to
take advantage of the streamlined approach, they always have the option
of reducing the storage capacity of oil at their facility by either
removing containers from the facility inventory, or permanently closing
containers in accordance with Sec.  112.2.
    Other commenters suggested higher threshold quantities, generally
based upon the quantities of oil used or stored in their particular
industry sector. EPA does not agree that this provides a rational basis
for raising the threshold limit for qualified facilities. Higher
thresholds would potentially allow owners and operators of facilities
(in some cases unmanned) with more complex operations or more complex
oil system configurations, designs and layouts, and with the potential
for an increased number of transfers, the option of foregoing the
services of a PE. Thus, self-certification for owners and operators of
more complex facilities would not be commensurate with their potential
spill risks.
    By limiting the self-certification option to owners and operators
of facilities with a maximum aggregate oil storage capacity of 10,000
gallons, the Agency believes that an owner or operator of a qualified
facility should be able to self-certify compliance the facility's SPCC
Plan, and that offering this simpler and streamlined alternative will
result in greater environmental protection by improving compliance with
the SPCC rule. Owners and operators of facilities handling smaller
amounts of oil would still be required to comply with the SPCC
requirements and to prevent and prepare to respond to oil discharges to
navigable waters and adjoining shorelines, but they would be able to do
so in a less costly manner. We believe this alternative certification
provision will prove to be an incentive for compliance.
b. Reportable Discharge History
    Clean Water Act section 311(b)(3) prohibits ``the discharge of oil
* * * into or upon the navigable waters of the United States, the
adjoining shorelines, or into or upon the waters of the contiguous
zone'' or in connection with specified activities in waters ``in such
quantities as may be harmful * * *.'' Section 311(b)(4) requires
regulations to define the quantities of oil, ``the discharge of which
may be harmful to the public health or welfare or the environment of
the United States, * * *.'' 33 U.S.C. 1321(b)(3), (4). In part 110, EPA
defines a ``discharge of oil in such quantities that may be harmful''
as a discharge of oil that violates applicable water quality standards;
a discharge of oil that causes a film or sheen upon the surface of the
water or on adjoining shorelines; or a discharge of oil that causes a
sludge or emulsion to be deposited beneath the surface of the water or
adjoining shorelines (40 CFR 110.3). The Agency refers to such
discharges as reportable discharges or as ``a discharge as described in
Sec.  112.1(b)'' of the rule. Any person in charge of a facility must
report any such discharge of oil to waters of the United States,
adjoining shorelines, the contiguous zone or in connection with
specified activities in waters from the facility to the National
Response Center (NRC) at 1-800-424-8802 immediately. While EPA
recognizes that past discharge

history does not necessarily translate into a predictor of future
performance, the Agency believes that discharge history is a reasonable
indicator of a facility owner or operator's ability to develop an SPCC
Plan for his smaller oil storage capacity facility without the
involvement of a PE.
    EPA proposed that a qualified facility subject to the SPCC
requirements must have no reportable oil discharges as described in
Sec.  112.1(b) during the ten years prior to self-certification or
since becoming subject to the SPCC requirements, whichever time period
is less. The Agency proposed using a facility's reportable discharge
history as a reasonable indicator of the effective implementation of an
SPCC Plan based on an established record of good oil spill prevention.
The reportable discharge history criterion was intended to limit the
option of self-certification to owners and operators of those
facilities that had demonstrated an effective implementation of spill
prevention measures in the past.
    The commenters who supported the proposed reportable discharge
requirement agree that it is important for a facility to have a clean
spill history. However, a significant number of commenters argued
against the proposed reportable discharge history criterion as an
appropriate criterion, and that the small storage capacity alone should
be sufficient to allow self-certification. One reason is that some
reportable discharges are not the facility owner or operator's fault,
but caused by outside sources. For example, a number of commenters
pointed to the recent hurricanes in the Gulf Coast states that led to
oil discharges that were not within the control of the facility owner
or operator. A further reason is that facilities that have a clean
discharge history might not always remain spill-free. As for the
proposed ten-year period, one commenter stated that facility owners and
operators are only required to keep records for SPCC Plans for three
years; most owners and operators keep them for five years. Another
commenter stated that a discharge history of ten years would almost be
impossible to prove. Another commenter believed that the qualification
for a qualified facility should not be based on the ten-year discharge
history, but should be based on the discharge history under the current
operator. A few commenters believed that risk of discharge should
determine self-certification. Additionally, many commenters recommended
alternative discharge history timeframes in place of the ten-year
timeframe EPA proposed. Half of the commenters believed that three
years should be the time frame for the reportable discharge history
since the SPCC record-keeping requirement for facility owners and
operators is three years. Two commenters mentioned that if a discharge
occurs and the Regional Administrator (RA) responds, and after review
of the SPCC Plan the RA does not require an amendment in the Plan, then
the discharge should not count against the facility owner or operator
when determining its compliance with a spill-history criterion.
    After consideration of the comments received, EPA is finalizing the
reportable discharge criterion for qualified facilities but for three
years, rather than ten years. The Agency agrees with commenters that a
ten-year spill history is unreasonable, particularly since the facility
owner or operator is only required to keep records for three years. In
addition, EPA is modifying the types of discharges that must be
considered for this criterion. The final rule provides that for the
three years prior to the SPCC Plan certification date, or since
becoming subject to 40 CFR part 112 if the facility has been in
operation for less than three years, the owner or operator of a
facility must certify that the facility has (1) had no single discharge
as described in Sec.  112.1(b) exceeding 1,000 U.S. gallons or (2) had
no two discharges as described in Sec.  112.1(b) each exceeding 42 U.S.
gallons within any twelve month period. 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 waters of the United
States, adjoining shorelines, the contiguous zone or in connection with
specified activities in waters and not the total amount of oil spilled.
For example, a facility only experiencing one discharge over the past
ten years in which 1,500 gallons of oil discharged onto the ground but
only 20 gallons reached waters of the United States (causing a sheen
and reportable to the NRC) would meet the reportable discharge history
criterion. However, a facility having 1,500 gallon discharge to waters
of the United States would not meet the reportable discharge history
criterion.
    In the preamble to the proposed rule, EPA requested comment on how
extreme events such as natural disasters, acts of war or terrorism,
sabotage or other calamities might potentially affect the discharge
history criterion for qualified facilities. Many commenters stated that
it would not be appropriate to include these events in the discharge
history criterion. The Agency agrees that those reportable discharges
caused by external factors beyond the control of the facility owner or
operator such as natural disasters, acts of war, or terrorism should
not disqualify owners and operators of otherwise qualified facilities
from taking advantage of the self-certification option. Therefore, we
have excluded those events from consideration in the reportable
discharge criterion in today's final rule. The Agency did not include
sabotage/vandalism in the final list of reportable discharge history
extreme events because these are not necessarily beyond the control or
planning ability of the facility owner or operator. Only those
discharges as described in Sec.  112.1(b) that are the result of
natural disasters, acts of war, or terrorism will not disqualify any
owner or operator of an otherwise qualified facility from using the
self-certification option.
    The discharge criterion finalized in today's rule is similar to the
provision in Sec.  112.4(a) for discharges that must be reported to the
EPA Regional Administrator (RA). A discharge that must be reported to
the RA pursuant to Sec.  112.4(a) may result from improper Plan
implementation, rather than from a deficiency in the Plan itself, which
would likely not cause the RA to require the facility owner or operator
to amend its Plan. Therefore, the EPA does not agree with the
commenters that suggested excluding those discharges as described in
Sec.  112.1(b) from the eligibility criterion that have been
investigated by the RA with no subsequent requirement for a Plan
amendment.
    The determination of eligibility based on reportable discharge
history is made at the time the SPCC Plan is certified--i.e., when the
SPCC Plan is amended to comply with the SPCC rule revisions in today's
final rule and those promulgated in July 2002. Once the compliance date
extension ends, Plans must be amended, certified and implemented. Any
discharges to navigable waters and adjoining shorelines that occur from
a qualified facility after the SPCC Plan has been certified do not
impact the eligibility of an owner or operator of the qualified
facility to take advantage of the self-certification option. The
facility does not lose eligibility status as a result of a discharge as
described in Sec.  112.1(b), unless the RA requires an amendment to the
SPCC Plan in accordance with Sec.  112.4(d) and specifically requires
PE-certification. If an owner or operator cannot certify that the
facility meets the eligibility criterion at the initial date of Plan
certification, but can later demonstrate a clean spill history of three
years, as well as compliance with any remedial actions required by the
RA

following a spill, then a technical amendment to the Plan can be self-
certified and the Plan can be revised to allow for qualified status.
4. Requirements for Qualified Facilities
    In today's rule, the Agency is creating a new section, Sec.  112.6,
with requirements specific for qualified facilities whose owners and
operators choose to self-certify their Plans. Owners and operators of
qualified facilities with an aggregate aboveground oil storage capacity
of 10,000 gallons of oil or less may choose to comply with the
requirements in Sec.  112.6 by completing and implementing a self-
certified SPCC Plan. A qualified facility's Plan, whether certified by
a PE or self-certified, must comply with all of the applicable
requirements of Sec.  112.7 and subparts B and C of the rule. We note,
however, that a facility's SPCC Plan does not need to conform to any
particular format. There is flexibility with respect to how a facility
owner or operator chooses to maintain the documentation comprising the
facility's Plan, just as there is flexibility with respect to how the
owner or operator chooses to carry out the elements of the Plan.
a. Self-Certification of Plan and Plan Amendment
    The commenters who supported self-certification for owners and
operators of qualified facilities believed that it would relieve burden
on the owners and operators. The commenters who opposed self-
certification did so for four main reasons. First, some commenters
believe that the preparation of the SPCC Plan requires scientific,
engineering, and professional judgment skills that are unique to
engineers. Second, some commenters believe owners and operators of
small facilities often cannot afford the cost of responding to a spill,
and it is important that the SPCC Plan is prepared carefully and
thoroughly by a PE. Third, some commenters believe that not having a PE
involved would adversely affect public health, safety, and welfare.
Fourth, some commenters believe that the proposal would allow non-
engineers to perform a function that is only allowed by engineers under
the National Council of Examiners for Engineering and Surveying, a
Model Law adopted by the majority of States.
    The self-certification option is designed for owners and operators
of those facilities that store smaller amounts of oil. These smaller
amounts of oil generally translate to facilities with simpler, pre-
engineered installations, such as restaurants, office buildings, family
farms, automotive repair shops, and rural electrical substations. EPA
believes that a differentiated option for users of smaller amounts of
oil has merit as other official bodies, such as standards setting
organizations have provided differentiations in their standards for
smaller users of oil. For example, the National Fire Protection
Association (NFPA) provides differentiated requirements based on type
of facility and size of tanks. Specifically, NFPA 30 (Flammable and
Combustible Liquids Code, 2000 Edition) applies to tanks that exceed
3,000 liters (793 gallons) and does not apply to facilities storing
flammable and combustible liquids as covered by NFPA 395, Standard for
the Storage of Flammable and Combustible Liquids at Farms and Isolated
Sites. The Agency believes that the relative simplicity of operations
at facilities using smaller amounts of oil has served as a basis for
other official bodies to develop requirements that are simpler in
scope.
    To this end, the Agency is amending the certification language so
that it clearly states that the owner or operator of the facility is
the certifying official for those who choose the option to self-certify
the Plan for qualified facilities. The Agency also intends to develop
materials to assist these owners or operators in developing SPCC Plans.
It should also be remembered that while owners and operators of these
facilities may choose not to have their SPCC Plans certified by a PE,
they will still be required to comply with all of the SPCC requirements
and to develop and implement a spill prevention program in accordance
with good engineering practices, and they may do so by following
regulatory guidance, industry recommended practices and standard design
and operation protocols. Finally, to the extent that a State has
adopted a law, such as one based on the National Council of Examiners
for Engineering and Surveying, that requires that a PE to perform
certain functions, including certifying Plans, nothing in today's rule
affects whether a facility owner or operator would be required to
utilize a PE to meet the state or local requirements since today's rule
does not pre-empt any State or local requirements.
    The Agency believes providing the added flexibility of self-
certification for the smaller oil handlers/simpler operations will
yield an increase in overall compliance for this segment of the
regulated community, which will result in improved compliance with the
rule and as a result, improve overall spill prevention and
environmental protection. However, owners or operators of some
qualified facilities with complicated operations may nonetheless find
that having a PE-certified Plan offers a more cost-effective method of
achieving compliance than the proposed option. Therefore, a qualified
facility owner or operator could choose to follow the existing SPCC
requirements (including the PE certification).
    The Agency also proposed and is finalizing today that an owner or
operator of a qualified facility may self-certify technical amendments
to the Plan, including modification of site diagrams, and that owners
and operators of facilities with PE-certified Plans that qualify for
self-certification can choose to self-certify future technical
amendments rather than hire a PE to certify the technical amendment.
Owners and operators of facilities that are not eligible to self-
certify are required to have a PE certify such modifications. In all
cases, any technical amendment in an SPCC Plan must be certified in
writing. As described in the preamble to the proposed rule, the Agency
notes that under the existing SPCC regulations, the RA, after reviewing
the facility's Plan, has the authority in Sec.  112.4 to require an
owner or operator of a facility that has had a discharge as described
in Sec.  112.1(b) or that poses an imminent danger of a discharge as
described in Sec.  112.1(b), to amend its SPCC Plan, including
requiring PE certification in accordance with Sec.  112.3(d).
b. Elements of Self-Certification and Plan Amendments for Owners and
Operators of Qualified Facilities
    The finalized requirements for owners and operators of qualified
facilities are similar to those in the proposed qualified facilities
option in the proposed rule. An owner or operator of a qualified
facility may choose to comply with the requirements in Sec.  112.6 by
completing and implementing a self-certified SPCC Plan in lieu of
having a PE certified Plan. The SPCC Plan must comply with all of the
applicable requirements of Sec.  112.7 and subparts B and C of the
rule.
    Owners and operators that choose to self-certify their Plans must
certify that they are familiar with the requirements of the SPCC rule;
they have visited and examined the facility; the Plan has been prepared
in accordance with accepted and sound industry practices and standards;
procedures for required inspections and testing have been established;
the Plan is being fully implemented; the facility meets the
qualification criteria set forth under Sec.  112.3(g); the Plan does
not include any

environmental equivalence measures as described in Sec.  112.7(a)(2) or
determinations of impracticability under Sec.  112.7(d) unless each
alternative method and/or determination has been reviewed and certified
by a PE in accordance with Sec.  112.6(d); and 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 qualified facility self-certification approach is optional.
Under today's final rule, an owner or operator of a qualified facility
may choose to prepare and implement a PE-certified SPCC Plan to comply
with the requirements under 40 CFR part 112.
c. Environmental Equivalence and Impracticability Determinations
    Under Sec.  112.7, all facility owners and operators have the
flexibility to deviate from specific rule provisions if the Plan states
the reason for nonconformance and if equivalent environmental
protection is provided by some other means of spill prevention,
control, or countermeasure. These ``environmentally equivalent''
measures must be described in the SPCC Plan, including how the
equivalent environmental protection will be achieved based on good
engineering practice. Allowance for ``environmentally equivalent'''
deviations is provided in Sec.  112.7(a)(2), and the deviations are
available only for the specific requirements listed in Sec.
112.7(a)(2), such as fencing and other security measures, evaluation of
the potential for catastrophic tank failure due to brittle fracture,
integrity testing, and overfill prevention. Environmental equivalence
is not available for secondary containment or the administrative or
recordkeeping requirements of the SPCC rule. As part of the SPCC Plan,
any environmentally equivalent measures are required to be certified by
a PE and the owner or operator, and the PE is required to consider
industry standards in the development of the Plan. Thus, when a PE
certifies a Plan that includes any environmentally equivalent
protection measure, the PE is certifying that these alternative
measures are consistent with relevant industry standards.
    The SPCC rule also provides flexibility for owners or operators who
determine that the general secondary containment requirements in Sec.
112.7(c) or any of the applicable additional requirements for secondary
containment in subparts B and C are impracticable. Where
impracticability is demonstrated, Sec.  112.7(d) allows facility owners
and operators the flexibility to instead develop a contingency plan and
comply with additional requirements. The SPCC Plan must explain why
secondary containment measures are not practicable. Section 112.7(d)
requires that, when containment for bulk storage containers is deemed
impracticable, the owner or operator must conduct both periodic
integrity testing of the containers and periodic integrity and leak
testing of the valves and piping. The owner or operator also must
provide an oil spill contingency plan that follows the provisions of 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 as described in 40 CFR part 110.
A PE must certify any determinations that secondary containment is
impracticable, as well as the additional measures implemented in lieu
of secondary containment.
    Because of the expertise that a PE has in evaluating whether
particular measures provide equivalent environmental protection and in
knowing how to effectively implement such measures, EPA believes that
the flexibility in these performance-based provisions is best suited to
SPCC Plans that are reviewed and certified by a PE. The same expertise
is necessary in determining whether the required secondary containment
is impracticable.
    EPA proposed that when a Plan is self-certified, the owner or
operator would not be able to use environmentally equivalent measures
or to make impracticability determinations with respect to secondary
containment. Instead, EPA proposed specific alternative measures for
compliance with security and integrity testing requirements at
qualified facilities that self-certify. The commenters who supported
this approach indicated that it added a safety factor into the self-
certification. Most commenters opposed this approach because
impracticability determinations and environmental equivalence were
originally created to relieve burden, and owners and operators of small
facilities still need the flexibility these mechanisms provide. Some
commenters believed that the agricultural industry would be negatively
affected because the environmental equivalence and impracticability
provisions are an important element to reduce the burden on owners and
operators of these facilities due to topography and operations. As for
the proposed specific alternative to environmentally equivalent
measures for security, one commenter supported this proposal.
    With respect to integrity testing, the Agency proposed to allow
self-certifying owners and operators of qualified facilities to perform
integrity testing by relying on industry standards for the integrity
testing requirements as an alternative to the existing bulk storage
containing integrity testing requirements. All but one commenter
supported the proposal. One commenter supported it, but also wanted
visual inspection of individual shop-fabricated tanks up to 10,000
gallons. Another commenter agreed, but believed that the expense of the
Steel Tank Institute's (STI) Tank Inspection Standard, SP001 (July
2005), was high and the STI standard and accompanying checklists are
not applicable to small facilities. A hybrid approach also was
suggested whereby owners and operators of qualified facilities would be
allowed to use the self-certification option, and, in the event that an
environmental equivalency or impracticability determination is needed,
the owner or operator must consult a PE for just that aspect of their
program, rather than requiring a full PE review and approval of the
entire Plan.
    The Agency continues to believe that the flexibility afforded by
the environmental equivalence or impracticability determinations should
be available only to owners and operators of facilities having those
elements reviewed and certified by a PE. At the same time, the Agency
recognizes that by restricting these options for owners and operators
of qualified facilities, the alternative of self-certification may not
be as attractive for some owners or operators because they will lose
the added flexibility of further tailoring the SPCC requirements to
their facility's characteristics. The Agency agrees with commenters
that under the proposed rule, there would likely be certain
circumstances where, because of cost considerations, a facility owner
or operator would not choose to self-certify because it would be more
cost effective for a PE to prepare an SPCC Plan that utilizes
environmentally equivalent measures or impracticability determinations.
    In today's final rule, the Agency therefore is adopting a hybrid
approach. This approach finalizes the alternatives for addressing
security measures and integrity testing and also allows owners or
operators of self-certified facilities to include environmentally
equivalent measures with respect to requirements other than facility
security and integrity testing, as well as to make

impracticability determinations, provided they have a PE certify these
environmentally equivalent measures or impracticability determinations.
Because qualified facilities typically have less complex operations and
petroleum system configurations and storage capacities than other
facilities subject to SPCC requirements, EPA believes that the
alternative requirements for facility security and bulk storage
container integrity testing finalized today are appropriate for self-
certification. However, today's rule does not preclude a qualified
facility from choosing to have a PE certify the integrity testing and/
or security measures in the facility's Plan as environmentally
equivalent measures. For example, where there are no industry standards
to guide integrity testing at a qualified facility, the alternative
integrity testing option in Sec.  112.6(c)(4)(ii) is not available.
However, the facility owner/operator is allowed to have a PE certify an
integrity testing protocol in the Plan that is environmentally
equivalent to the applicable requirements in subpart B or C. The Agency
believes that this ``hybrid'' approach will further expand the
flexibility offered by the self-certification compliance option to
owners and operators of qualified facilities without compromising
proper environmental protection.
    Similarly, EPA is adopting a hybrid approach to certification of
technical amendments to a qualified facility's SPCC Plan in Sec.
112.5. PE-certified sections of a qualified facility's ``hybrid'' SPCC
Plan require PE certification of any technical amendments to that
portion of the Plan. Technical amendments to the non-PE certified
sections of a qualified facility's ``hybrid'' Plan can be certified by
the owner or operator.

B. Qualified Oil-Filled Operational Equipment

    The definition of bulk storage container in Sec.  112.2
specifically excludes oil-filled electrical, operating, and
manufacturing equipment (``oil-filled equipment''). Therefore, oil-
filled equipment is not subject to the bulk storage container
requirements in Sec. Sec.  112.8(c), 112.9(c), and 112.12(c). However,
oil-filled equipment must meet the general requirements of Sec.  112.7,
including the general secondary containment requirements of Sec.
112.7(c). The general secondary containment requirements are intended
to address the most likely oil discharge from oil-filled equipment.
Although oil-filled equipment differs from bulk storage containers in
several ways, the oil storage capacity of oil-filled equipment still
counts towards the aggregate oil storage capacity of the facility.
    EPA proposed to amend the SPCC rule to provide a definition of oil-
filled operational equipment and an optional alternative to the general
secondary containment requirements for oil-filled operational equipment
at a facility that meets the qualifying criterion (hereafter referred
to as ``qualified oil-filled operational equipment''). These amendments
are being finalized in today's rule. The rule allows owners and
operators of facilities with eligible oil-filled operational equipment
as defined in Sec.  112.2 the option to prepare an oil spill
contingency plan and a written commitment of manpower, equipment, and
materials to expeditiously control and remove any oil discharged that
may be harmful without having to make an individual impracticability
determination as required in Sec.  112.7(d). If an owner or operator
takes this option, he or she is also required to establish and document
an inspection or monitoring program for this qualified oil-filled
operational equipment to detect equipment failure and/or a discharge in
lieu of providing secondary containment.
    New provisions in Sec.  112.7(k) define the criterion that
facilities must meet in order to be considered eligible for the
``qualified oil-filled operational equipment'' option. Eligibility of a
facility with oil-filled operational equipment is determined by
considering the reportable discharge history from only oil-filled
operational equipment at the facility; the Agency is adopting the same
reportable discharge history criterion that it adopted for qualified
facilities, as discussed in Section V.A.3.b above. That is, the
qualified oil-filled operational equipment criterion specifically
requires that the facility did not discharge more than 1,000 U.S.
gallons in a single discharge as described in Sec.  112.1(b) or
discharge more than 42 U.S. gallons in each of two discharges as
described in Sec.  112.1(b) within twelve months, from any oil-filled
operational equipment in the three years prior to the SPCC Plan
certification date, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than three years.
    As proposed, the final rule provides an alternative means of SPCC
compliance for this equipment; therefore, an owner or operator could
choose to comply with the existing SPCC requirements to provide general
secondary containment for each piece of qualified oil-filled
operational equipment in accordance with Sec.  112.7(c), if desired.
For example, oil-filled operational equipment at electrical substations
is often surrounded by a gravel bed, which serves as a passive fire
quench system and support for the facility grounding network that can
restrict the movement of oil in the event of a release. Gravel beds, if
designed to prevent a discharge as described in Sec.  112.1(b) (i.e.,
drainage systems that do not serve as a conduit to surface waters) may
meet the general secondary containment requirements of Sec.  112.7(c).
EPA further notes that oil-filled operational equipment located within
buildings with limited drainage and which prevent a discharge as
described in Sec.  112.1(b), may already meet the requirements for
general secondary containment of Sec.  112.7(c).
    In some situations, permanent containment structures, such as
dikes, may not be feasible (i.e., for certain electrical equipment).
Section 112.7(c) allows for the use of certain types of active
containment measures (countermeasures or spill response capability),
which prevent a discharge to navigable waters or adjoining shorelines.
Active containment measures are those that require deployment or other
specific action by the owner or 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 spill from reaching navigable waters or
adjoining shorelines. Thus, a method of detecting a discharge is of
great importance to effectively implement the use of active containment
measures. If an owner or operator provides secondary containment for
oil-filled operational equipment by the use of active measures, a
contingency plan for this equipment is not necessary. Ultimately, the
decision whether to use the optional approach to secondary containment
for qualified oil-filled equipment must be made by the owner or
operator.
1. Oil-Filled Operational Equipment Definition
    EPA proposed to define ``oil-filled operational equipment'' as
``equipment which includes an oil storage container (or multiple
containers) in which the oil is present solely to support the function
of the apparatus or the device. Oil-Filled operational equipment is not
considered a bulk storage container, and does not include oil-filled
manufacturing equipment (flow-through process).'' Many of the
commenters supported this definition and therefore, we are finalizing
this definition in today's rule and including examples in the

definition to provide additional clarity. Examples of oil-filled
operational equipment include, but are not limited to, hydraulic
systems, lubricating systems (i.e., those for pumps, compressors and
other rotating equipment, including pumpjack lubrication systems), gear
boxes, machining coolant systems, heat transfer systems, transformers,
circuit breakers, electrical switches, and other systems containing oil
solely to enable the operation of the device. When piping is intrinsic
to the oil-filled operational equipment in a closed loop system, i.e.,
inherent to the equipment and used solely to facilitate operation of
the device, (e.g., for lubrication) then EPA will consider the piping
to be a component of the oil-filled operational equipment. However,
piping not intrinsic to the operational equipment (i.e., flowlines,
transfer piping or piping associated with a process) will not be
considered to be part of the oil-filled operational equipment.
    The Agency received comments that included alternatives to the
definition proposed. Specifically, commenters suggested that the word
``storage'' be removed from the definition of ``oil-filled operational
equipment.'' The Agency disagrees with the suggestion to remove the
word ``storage'' from the definition because oil-filled operational
equipment includes oil inherent to the device which is stored prior to
and during use for the operation of the equipment and when the oil-
filled operational equipment is in standby.
    Some commenters asked that EPA identify generators (``gensets'') as
oil-filled operational equipment. EPA's position is that gensets are a
combination of oil-filled operational equipment and a bulk oil storage
container, and the oil that is consumed to generate electricity is not
inherent to the device. (The bulk storage container on a genset often
requires the transfer of oil.) Therefore, although gensets incorporate
oil-filled operational equipment, such as the lubrication oil system,
gensets, as a whole unit, do not meet the definition of oil-filled
operational equipment in today's final rule. In situations where it is
impracticable to provide appropriate secondary containment for gensets
(for either the bulk storage containers or oil-filled operational
equipment of the genset), a PE can make a determination of
impracticability in accordance with Sec.  112.7(d) and develop a
contingency plan following the provisions of 40 CFR part 109 and
provide a written commitment of manpower, equipment and materials to
expeditiously control and remove any quantity of oil discharged that
may be harmful. See Chapter 4 of the SPCC Guidance for Regional
Inspectors for further explanation regarding when sized secondary
containment is required for mobile or portable containers that are in a
stationary, unattended mode.
    Several commenters argued that by combining oil-filled electrical
with other operational equipment, EPA diluted the strong case for
differentiation of oil-filled operational equipment. Commenters also
suggested that EPA redefine electrical equipment to include not only
circuit breakers, transformers, and electrical switches, but also
hydraulic systems, lubricating systems, gear boxes, machining coolant
systems, heat transfer systems, etc. In July 2002, when EPA clarified
that oil-filled electrical, operating, and manufacturing equipment are
not bulk storage containers, the Agency agreed to continue to evaluate
whether the general secondary containment requirements found in Sec.
112.7(c) should be modified for small electrical and other types of
equipment which use oil for operating purposes. Today's definition of
oil-filled operational equipment describes the function of both
electrical equipment, as well as other types of operating equipment
(hydraulic systems, lubricating systems, etc.)
    Oil-filled electrical and operating equipment share common
characteristics. They both typically have minimal oil throughput
because such equipment does not require frequent transfers of oil.
Further, the oil contained in oil-filled operational equipment, such as
cooling or lubricating oil, is intrinsic to the operation of the device
and facilitates the function of the equipment. Utilities have strong
economic incentives to prevent power outages, to discover and respond
to an outage, and to correct the conditions that produced the outage as
quickly as possible. Other industry sectors also have strong incentives
to prevent discharges to avoid disruption in business and costs of a
cleanup. The Agency believes it is appropriate to allow the same
alternative means of compliance with the general secondary containment
requirements of Sec.  112.7(c) for oil-filled operational equipment at
all facilities. In addition, oil-filled operational equipment often is
subject to routine maintenance and inspections to ensure proper
operation. Therefore, the Agency believes it is appropriate to allow
the same alternative means of compliance with general secondary
containment requirements to apply to both oil-filled electrical and
operational equipment. We have included both types of equipment into
the definition of oil-filled operational equipment.
2. Oil-Filled Manufacturing Equipment
    The Agency is not finalizing a definition of oil-filled
manufacturing equipment because we did not propose and seek comment on
a definition. Additionally, the Agency does not agree with commenters
that the alternative option to general secondary containment should
also apply to oil-filled manufacturing equipment. Oil-filled
manufacturing equipment is inherently more complicated than oil-filled
operational equipment because it typically involves a flow-through
process and is commonly interconnected through piping. For example,
oil-filled manufacturing equipment may receive a continuous supply of
oil, in contrast to the static capacity of other, non-flow-through oil-
filled equipment. Examples of oil-filled manufacturing equipment
include, but are not limited to, process vessels, conveyances such as
piping associated with a process, and equipment used in the alteration,
processing or refining of crude oil and other non-petroleum oils,
including animal fats and vegetable oils.
    The final rule does not change any requirements for oil-filled
manufacturing equipment. Oil-filled manufacturing equipment remains
subject to the general SPCC requirements under Sec.  112.7, including a
demonstration of impracticability under Sec.  112.7(d) if the SPCC Plan
does not provide for general secondary containment as required by Sec.
112.7(c). The oil storage containers associated with the storage of raw
products or finished oil products are bulk oil storage containers and
are not considered oil-filled manufacturing equipment or oil-filled
operational equipment. Oil-filled manufacturing equipment is distinct
from bulk storage containers in its purpose and is described in the
SPCC Guidance for Regional Inspectors. Oil-filled manufacturing
equipment stores oil only as an ancillary element of performing a
mechanical or chemical operation to create or modify an intermediate or
finished product. Some more specific examples of oil-filled
manufacturing equipment may include reaction vessels, fermentors, high
pressure vessels, mixing tanks, dryers, heat exchangers and
distillation columns. Under the SPCC rule, flow-through process vessels
are generally considered oil-filled manufacturing equipment since they
are not intended to store oil. EPA expects the owner or operator and
the certifying PE to delineate bulk storage containers from the oil-
filled manufacturing equipment

in the facility's SPCC Plan (i.e., on the facility's diagram and in
discussion of compliance with inspection requirements of the rule).
Additionally, although oil-filled manufacturing equipment is not a bulk
storage container and is therefore not subject to the frequent visual
inspection requirement for bulk storage containers under Sec.
112.8(c)(6), EPA believes that it is good engineering practice to have
some form of visual inspection or monitoring for oil-filled
manufacturing equipment in order to prevent discharges as described in
Sec.  112.1(b). Furthermore, it is a challenge to comply with several
of the SPCC provisions (for example, requirements for security under
Sec.  112.7(g)) and to address countermeasures for discharge discovery
under Sec.  112.7(a)(3)(iv)) without some form of inspection or
monitoring program.
3. Eligibility Criteria
a. Reportable Discharge History
    Part 110 defines a discharge of oil in such quantities that may be
harmful to the public health, welfare, or the environment of the United
States as a discharge of oil that violates applicable water quality
standards; a discharge of oil that causes a film or sheen upon the
surface of the water or on adjoining shorelines; or a discharge of oil
that causes a sludge or emulsion to be deposited beneath the surface of
the water or adjoining shorelines (40 CFR 110.3). The Agency refers to
such discharges as reportable discharges or as ``a discharge as
described in Sec.  112.1(b)'' of the rule. Any person in charge of a
facility must report any such discharge of oil from the facility to the
National Response Center (NRC) at 1-800-424-8802 immediately. While EPA
recognizes that past release history does not necessarily translate
into a predictor of future performance, the Agency believes that
discharge history is a reasonable indicator of a facility owner or
operator's ability to develop an SPCC Plan for the facility without the
involvement of a PE.
    Under the proposal, the alternative compliance approach for general
secondary containment for oil-filled operational equipment would not be
allowed to be implemented at the facility unless the owner or operator
had no reportable discharge from any oil-filled operational equipment
in the ten years prior to the SPCC Plan certification date, or since
becoming subject to 40 CFR part 112 if the facility had been in
operation for less than ten years. This criterion was based on a
proposal submitted by the Utility Solid Waste Activities Group (USWAG),
as described in the documents supplementing the September 20, 2004
Notice of Data Availability (NODA) at 69 FR 56184.
    Many commenters agreed with the proposed eligibility requirement.
However, several comments requested that the qualifier be dropped and
the type of equipment be the only qualifier. These commenters argued
that reportable discharge history was not a suitable criterion for a
number of reasons, including: (1) It is arbitrary and capricious--
eligibility should be rationally related to equipment or equivalent
facility performance; (2) it is not effective to identify bad actors
who do not report discharges; (3) it is unreasonable for crude oil and
natural gas production facilities, so no requirements should apply; and
(4) it does not take into consideration the volume of oil or location
of equipment in assessing risk. Other commenters suggested considering
the criterion for submitting reports to EPA under Sec.  112.4 to be the
eligibility criterion for oil-filled operational equipment. Another
commenter requested EPA clarify that the discharge is from regulated
equipment, i.e., equipment that is greater than 55 gallons.
    Although EPA recognizes that past discharge history does not
necessarily predict future performance, the Agency believes that
discharge history can be used as a surrogate measure for a facility
owner or operator's ability to appropriately manage its oil. Hence, as
with ``qualified facilities,'' EPA is using this discharge history
criterion to identify a facility owner or operator's ability to
effectively implement its SPCC Plan and prevent discharges in
quantities that may be harmful. In establishing a good oil spill
prevention history for its oil-filled operational equipment, a facility
then qualifies for the oil spill contingency plan option in lieu of
secondary containment. Because the Agency believes it is appropriate to
extend this approach to all oil-filled operational equipment,
regardless of the oil storage capacity of the equipment, the spill
history criterion is critical to establish an appropriate balance
between environmental protection and streamlined requirements by
identifying those facilities whose owners or operators have
demonstrated good spill prevention practices in the past.
    EPA does not agree that this is unreasonable for crude oil and
natural gas production facilities because the reportable discharge
criterion is applicable only to the oil-filled operational equipment at
the facility and is not affected by other discharges that may have
occurred from the facility from other types of oil storage containers.
One commenter pointed out that discharges from compressors, pumpjacks,
and similar equipment are extremely rare and unlikely to reach
navigable waters and adjoining shorelines.
    Many commenters suggested an alternate reportable discharge history
period of five years. One commenter suggested three years and another
suggested either two or five years. A few commenters suggested the time
period should be five years with a Sec.  112.4 spill notification
trigger.
    In response to comments received on the proposed rule, EPA has
reduced the discharge history period from ten years to three years,
which is consistent with the recordkeeping requirements in Sec.
112.7(e). In addition, rather than including all discharges reportable
to the National Response Center, the Agency is specifying amounts of
more than 1,000 U.S. gallons in a single discharge as described in
Sec.  112.1(b) or more than 42 U.S. gallons in two discharges as
described in Sec.  112.1(b) within a twelve month period during the
three-year timeframe, or since becoming subject to 40 CFR part 112 if
the facility has been in operation for less than three years, only from
oil-filled operational equipment at the facility. This criterion does
not include oil discharges as described in Sec.  112.1(b) that are the
result of natural disasters, acts of war, or terrorism. The approach is
similar to the discharges that are reportable to the Regional
Administrator under Sec.  112.4(a), with the exception that the
criterion finalized today applies only to discharges from oil-filled
operational equipment and not all oil containers at a facility as in
the case of Sec.  112.4(a). 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 waters of the United States,
adjoining shorelines, the contiguous zone or in connection with
specified activities in waters and not the total amount of oil spilled.
For example, a facility only experiencing one discharge over the past
ten years in which 1,500 gallons of oil discharged onto the ground but
only 20 gallons reached waters of the United States (causing a sheen
and reportable to the NRC) would meet the Reportable Discharge History
criterion. However, a facility having 1,500-gallon discharge to waters
of the United States would not meet the Reportable Discharge History
criterion.
    The determination of eligibility based on reportable discharge
history is made at the time the SPCC Plan is certified.

That is, when the SPCC Plan is amended to comply with the SPCC rule
revisions in today's final rule and those promulgated in July 2002.
Once the current compliance date extension ends, Plans must be amended,
certified and implemented. Any discharges to navigable waters and
adjoining shorelines that occur from oil-filled operational equipment
at the facility after the SPCC Plan has been certified do not impact
the eligibility of qualified oil-filled operational equipment at the
facility. The facility does not lose eligibility status as a result of
a discharge as described in Sec.  112.1(b), unless the RA requires an
amendment to the SPCC Plan in accordance with Sec.  112.4(d) and
specifically requires secondary containment for oil-filled operational
equipment. If an owner or operator cannot certify that the oil-filled
operational equipment meets the eligibility criterion at the initial
date of Plan certification, but can later demonstrate a clean spill
history of three years, then a technical amendment to the Plan can be
certified and the Plan can be revised to allow for qualified status for
oil-filled operational equipment.
    In the preamble to the proposed rule, EPA requested comment on how
extreme events such as natural disasters and acts of war, terrorism ,
sabotage, or other calamities might potentially affect the discharge
history criterion for qualified facilities. Many commenters agreed (and
no commenters disagreed) that EPA should account for extreme events
such as natural disasters, acts of war or terrorism, etc. in granting
eligibility status. The Agency agrees that reportable discharges caused
by external factors beyond the control of the facility owner or
operator such as natural disasters, acts of war, or terrorism should
not disqualify a facility from eligibility for the qualified oil-filled
equipment provision. Therefore we have excluded those events from
consideration in the reportable discharge eligibility criterion in
today's final rule. The Agency has excluded sabotage/vandalism from the
final list of extreme events not to be considered in the reportable
discharge history because these are not necessarily beyond the control
or planning ability of the facility owner or operator.
b. Consideration of Alternative Qualification Criteria
    One commenter suggested that the inspection and monitoring program
be the only qualifier for a facility owner or operator to take
advantage of this option. Other suggestions would allow eligibility to
be based on the type of equipment and a commitment or duty to properly
maintain that equipment such as the duty in 40 CFR 122.41(e) to
maintain wastewater treatment equipment. In this case, facility owners
or operators would lose eligibility based on their performance or SPCC
inspection results (i.e. failure to maintain oil-filled electrical
equipment). The Agency is not finalizing these alternatives as part of
the eligibility criteria because we believe it is in the owner or
operator's best interest to properly maintain equipment at the facility
and a commitment to the Agency to maintain equipment is not necessary.
    The Agency believes that inspections and monitoring are part of an
effective spill prevention program and it is more appropriate to
include these prevention practices as a component of the alternative
option for compliance with general secondary containment requirements
for oil-filled operational equipment. To include these spill prevention
practices as a basis for qualification raises questions on the length
of time and scope of the inspection and monitoring program necessary to
be in place at the facility in order to demonstrate qualification.
    Additionally, the SPCC regulations already provide EPA the
authority to require SPCC Plan amendments under Sec.  112.4 so it is
not necessary to include an automatic loss of eligibility based on
facility performance or SPCC inspection results. Section 112.4(a)
requires an owner or operator of a facility that has discharged more
than 1,000 U.S. gallons of oil in a single discharge as described in
Sec.  112.1(b) or that has discharged more than 42 U.S. gallons of oil
in each of two discharges as described in Sec.  112.1(b) within any
twelve month period, to submit information to the EPA RA within 60 days
of the date of the discharge. As per Sec.  112.4(d), the RA may require
the facility owner or operator to amend the SPCC Plan in order to
prevent and contain discharges, including a requirement that a facility
owner or operator provide secondary containment for qualified oil-
filled operational equipment. The time frame for this review and
amendment process is described in Sec.  112.4. The facility owner or
operator may choose to appeal the RA's decision to require a Plan
amendment under Sec.  112.4. In addition, a discharge of oil ``in such
quantities as may be harmful'' as defined in 40 CFR 110.3 that does not
trigger the reporting requirements of Sec.  112.4(a) must still be
reported to the National Response Center. Criminal action can be taken
against an owner or operator of a facility if discharges are willfully
not reported. EPA also receives copies of the NRC reports and has the
authority under Sec.  112.1(f) to require a facility owner or operator
to prepare and implement an SPCC Plan or any applicable part of a Plan.
    Owners and operators of facilities with qualified oil-filled
operational equipment that choose the alternative to secondary
containment and that subsequently have a discharge would not
automatically lose eligibility for today's optional approach. Owners or
operators of facilities that discharge oil in quantities that may be
harmful from oil-filled operational equipment should re-evaluate the
effectiveness of the SPCC Plan (specifically the contingency plan,
written commitment of resources, and inspections/monitoring alternative
discussed in today's final rule) and determine the need for secondary
containment measures in lieu of contingency planning. Additionally, the
Regional Administrator may determine that a facility owner or operator
is no longer eligible to have a contingency plan in lieu of secondary
containment without making an impracticability determination, and such
owners or operators may be required to amend their Plans to provide
secondary containment for their oil-filled operational equipment.
4. Requirements for Qualified Oil-Filled Operational Equipment In Lieu
of Secondary Containment
a. Contingency Plans and a Written Commitment of Manpower, Equipment,
and Materials
    As described in the preamble to the proposed rule, EPA believes
that secondary containment often may be impracticable for oil-filled
operational equipment because of inherent design and safety
considerations, as well as site configuration. The oil associated with
oil-filled operational equipment remains inside the equipment and
transfers do not occur regularly; for oil-filled electrical equipment
(i.e., transformers) transfers typically occur infrequently, if at all.
The complexity of the equipment and the nature of the use of this
equipment does not lend itself to traditional bulk storage containment
methods and thus flexibility is appropriate in this area and may
improve compliance with oil pollution prevention measures. EPA proposed
amendments to Sec.  112.7 to give owners and operators of facilities
with qualified oil-filled operational equipment the option of
implementing an inspection and monitoring program, developing an oil
spill contingency plan and providing a written commitment of resources

required to expeditiously control and remove any quantity of oil
discharged that may be harmful, in lieu of secondary containment for
this equipment, without having to make an impracticability
determination for each piece of oil-filled operational equipment. The
inspection and/or monitoring program, contingency plan and written
commitment of resources would be included in the facility SPCC Plan.
Commenters generally supported this proposal and the provision is being
finalized in Sec.  112.7(k) as proposed.
    A number of commenters were unclear regarding the intent of an oil
spill contingency plan. For example, a common industry interpretation
of an ``oil spill contingency plan'' covers anticipated responses to
oil spills both on land, as well as spills that reach navigable waters.
Some commenters suggested that the contingency plan be in lieu of an
SPCC Plan entirely. Others suggested that it is an administrative
burden to identify downstream water users and the majority of
commenters suggested that it is inappropriate to consider large
discharges to water since the goal should be to prevent oil from
getting to navigable waters in the first place. Several commenters
suggested that implementation of a contingency plan in accordance with
the requirements of 40 CFR part 109 was inappropriate because the
purpose of the contingency plan should be to prevent a discharge to
navigable waters and adjoining shorelines.
    Commenters suggested that the oil spill contingency plan should
instead contain four major elements: hazard identification,
vulnerability analysis, risk assessment and response actions. Many of
the commenters that suggested simplifying the contingency planning
option to allow for hazard identification, vulnerability analysis, risk
assessment, and response actions may already be in compliance with the
general secondary containment requirements of the SPCC rule by
utilizing active secondary containment measures.
    We do not believe that a contingency plan, by itself, is sufficient
to substitute for an SPCC Plan. The purpose of the SPCC Plan is to
prevent discharges of oil from reaching navigable waters and adjoining
shorelines and includes a combination of procedures, measures and
equipment to achieve that goal, e.g., procedures for inspections and
personnel training, equipment to prevent and control discharges of oil
and security measures. Conversely, a contingency plan is a detailed oil
spill response and removal plan that addresses controlling, containing,
and recovering an oil discharge in quantities that may be harmful to
navigable waters or adjoining shorelines. Contingency plans have a dual
purpose. The first purpose is to outline the response capability or
countermeasures to limit the quantity of a discharge from reaching
navigable waters or adjoining shorelines (if possible). The second is
to address the facility owner or operator's effective preparation for a
response to a discharge of oil that has already reached navigable
waters or adjoining shorelines. A contingency plan should include the
ability to expeditiously control and remove any quantity of oil
discharged that may be harmful.
    The elements of the contingency plan are outlined in Sec.  109.5,
and include: definition of the authorities, responsibilities, and
duties of all persons, organizations, or agencies that are to be
involved or could be involved in planning or directing oil removal
operations; establishment of notification procedures for the purpose of
early detection and timely notification of an oil discharge; provisions
to ensure that full resource capability is known and can be committed
during an oil discharge situation; provisions for well-defined and
specific actions to be taken after discovery and notification of an oil
discharge; and specific and well-defined procedures to facilitate
recovery of damages and enforcement measures as provided for by state
and local statutes and ordinances.
    An owner or operator of a facility with oil-filled operational
equipment that has submitted a Facility Response Plan (FRP) to EPA in
accordance with Sec.  112.20 would not need to also develop a
contingency plan in accordance with 40 CFR part 109 for the oil-filled
operational equipment because an FRP is more comprehensive than a
contingency plan. Additionally, the contingency planning requirement
can be met either by a whole new plan or by ensuring that the elements
called for in 40 CFR part 109 and the accompanying written commitment
of manpower, equipment and materials are integrated into the SPCC Plan
or another plan already in place at the facility (provided that a
section cross-referencing the location of requirements listed in 40 CFR
part 109 and the equivalent requirements in the other response plan is
included).
    For a contingency plan to satisfy the requirements listed in Sec.
112.7(k) of today's final rule, a facility owner or operator must be
able to implement the contingency plan. Activation of the contingency
plan depends on the capability of the owner or operator of the facility
to quickly detect a discharge. Therefore, as part of an evaluation of
the adequacy of a contingency plan to satisfy the requirements of Sec.
112.7(k), EPA will consider the time it takes facility personnel to
detect and mitigate a discharge as described in Sec.  112.1(b).
    Inspections or monitoring are particularly important to detect an
oil discharge when there is no secondary containment in place.
Therefore, EPA proposed and is finalizing the provision to require
owners and operators of facilities with qualified oil-filled
operational equipment that choose to develop and implement contingency
plans to also develop and implement an inspection or monitoring
program, as further discussed in this section of the preamble. Because
the qualified oil-filled operational equipment approach is optional, an
owner or operator of a facility with such equipment may choose to
provide general secondary containment in accordance with Sec.  112.7(c)
for this oil-filled operational equipment, if desired. Ultimately, this
is the decision of the owner or operator of the facility.
    The comments received suggest there is a misunderstanding
concerning the general secondary containment requirements of Sec.
112.7(c). General secondary containment under Sec.  112.7(c) should be
designed to address the most likely discharge from the primary
containment system, i.e., appropriate containment and/or diversionary
structures or equipment must be designed to prevent a discharge as
described in Sec.  112.1(b). Secondary containment may be either
passive measures or active measures (countermeasures or land-based
spill response capability) since both are designed to prevent a
discharge from reaching navigable waters or adjoining shorelines.
    Passive measures are permanent installations (such as dikes or
berms) and do not require deployment or action by the owner or
operator. However, permanent (passive) containment structures, such as
dikes, may not always be feasible for certain oil-filled operational
equipment (i.e., electrical transformers, capacitors, switches). The
owner or operator of an SPCC-regulated facility may instead use the
flexibility of active containment measures to comply with the general
secondary containment requirements for oil-filled operational
equipment.
    Active containment measures are those that require deployment or
other specific action by the owner or operator of a facility. These
active 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 and can reasonably be implemented to prevent
an oil spill from reaching navigable waters or adjoining shorelines.
The efficacy of active secondary containment measures to prevent
discharges depends on their technical effectiveness (i.e., mode of
operation, absorption rate), placement and quantity, and timely
deployment prior to, or following a discharge. A method of detecting a
discharge is therefore of great importance to effectively implement the
use of active containment measures. These active measures must be
implemented effectively and in a timely manner to prevent oil from
reaching navigable waters and adjoining shorelines, as required by
Sec.  112.7(a)(3)(iii) and (c).
    Many commenters indicated that the 40 CFR part 109 plan is designed
for local governments and therefore inappropriate for facilities. Some
commenters suggested using environmental equivalence to tailor a 40 CFR
part 109 plan or allow flexibility for facility owners and operators to
comply only with applicable requirements. Other commenters suggested
the use of generic and multi-facility plans. Some commenters suggested
expanding the training requirements to apply to more than just the oil-
handling personnel at the facility. Commenters also indicated that it
is onerous to list each piece of equipment in a Plan, and that it is
burdensome to keep the Plan up-to-date to account for mobile equipment.
    Environmental equivalence is available to allow for alternative
means of fulfilling the same function as the specific provision listed
in Sec.  112.7(a)(2). Because the contingency plan elements in part 109
do not contain specific requirements as to how those elements are
fulfilled, there is no need to provide for environmentally equivalent
means of fulfilling those requirements, Thus, the Agency believes that
there is already sufficient flexibility in the criteria for an oil
spill contingency plan in 40 CFR part 109. Moreover, since the purpose
of the plan is to prepare for response to a discharge of oil that has
reached navigable waters or adjoining shorelines, each of the elements
of a contingency plan listed in 40 CFR part 109 are appropriate.
Although the elements of a contingency plan listed in 40 CFR part 109
were originally developed to outline procedures for local and regional
oil removal contingency plans, these elements can be adapted for SPCC
regulated facilities. A sample contingency plan adapted to the needs of
an SPCC-regulated facility following the provisions of 40 CFR part 109
is included in Appendix F of the SPCC Guidance for Regional Inspectors
which is available on the EPA Web site at http://www.epa.gov/oilspill.

The guidance document also provides more information on active and
passive secondary containment measures.
    Other commenters suggested the use of generic and multi-facility
SPCC Plans. In July 2002, the Agency stated that a multi-facility SPCC
Plan may be appropriate for operating equipment (oil-filled operational
equipment) (see 67 FR 47042, 47080.) This type of SPCC Plan is intended
for electrical utility transmission systems, electrical cable systems,
and similar facilities whose owners and operators might aggregate
equipment located in diverse areas into one Plan. Multi-facility Plans
would include all elements required for individual SPCC Plans. Site-
specific information would be required for all equipment included in
each Plan. However, the site-specific information might be maintained
in a separate location, such as a central office, or an electronic
database, as long as such information was immediately accessible to
responders and inspectors. If you keep the information in an electronic
database, you must also keep a paper or other backup that is
immediately accessible for emergency response purposes, or for EPA
inspectors, in case the computer is not functioning. It is not clear
what the commenters meant by a generic Plan, however, the Agency
believes that any Plan developed must be in accordance with the
requirements of 40 CFR part 112.
    Commenters recommended that training at a facility be expanded
beyond the personnel involved in oil handling, with one commenter
suggesting that training include any individuals who could reasonably
be expected to implement any component of the contingency plan; they
also suggested rule language for such an approach. The Agency agrees
that any employee who is required to implement any component of an oil
spill contingency plan may be considered ``oil-handling personnel'' and
require training in accordance with Sec.  112.7(f). This would consist
of training in the operation and maintenance of equipment to prevent
discharges; discharge procedure protocols; applicable pollution control
laws, rules and regulations; general facility operations; and the
contents of the facility SPCC Plan (including the contingency plan).
Contractors involved in oil handling activities at the facility should
also have appropriate oil spill response training.
    Additionally, commenters indicated that it is onerous to list each
piece of equipment in an SPCC Plan, and that it is burdensome to keep
the Plan up-to-date to account for mobile equipment. The Agency agrees
that it may be burdensome to frequently update an SPCC Plan for mobile
equipment. However, we believe there is sufficient flexibility in the
SPCC rule to address this concern. For example, EPA has stated that if
you store mobile containers in a certain area, you must mark that area
on the diagram. You may mark the contents of each container either on
the diagram of the facility, or on a separate sheet or log if those
contents change on a frequent basis. More information on the
flexibility of the SPCC rule for mobile/portable containers is
available in the SPCC Guidance for Regional Inspectors available on the
EPA Web site at http://www.epa.gov/oilspill.

b. Inspections or Monitoring Program
    The majority of commenters supported the proposal to include an
inspection and monitoring program. A facility owner or operator must be
able to quickly detect a discharge from oil-filled operational
equipment in order for a contingency plan to be effective. Therefore,
the Agency is including a requirement for an inspection and monitoring
program in today's rule. Facility owners or operators who wish to take
advantage of this alternative are required to develop an appropriate
set of procedures for inspections or a monitoring program for qualified
oil-filled operational equipment. For facility owners and operators
that rely on contingency planning in lieu of secondary containment for
qualified oil-filled operational equipment, the discovery of a
discharge by inspection or monitoring is of paramount importance for
effective and timely implementation of the contingency plan. An
inspection or a monitoring program ensures that facility personnel are
alerted quickly of equipment failures and/or discharges. A written
description of the inspection or monitoring program is required to be
included in the SPCC Plan. Under the requirement in Sec.  112.7(e), the
owner or operator is required to keep a record of inspections and
tests, signed by the appropriate supervisor or inspector, for a period
of three years.
    Although oil-filled operational equipment is not a bulk storage
container and is therefore not subject to the frequent visual
inspection requirement for bulk storage containers under Sec.
112.8(c)(6), EPA believes that it is good engineering practice to have

some form of visual inspection or monitoring for oil-filled operational
equipment in order to prevent discharges as described in Sec.
112.1(b). Therefore, in lieu of secondary containment, the proposal
included the requirement for a facility owner or operator to establish
and document an inspection or monitoring program, in addition to the
preparation of a contingency plan and a written commitment of manpower,
equipment, and materials to expeditiously control and remove discharged
oil. One commenter suggested requiring only inspection and monitoring
for oil-filled operational equipment up to 5,000-gallon capacity and no
other written Plan. The Agency continues to believe that a written SPCC
Plan is essential to document the prevention procedures and
countermeasures employed at the facility and is necessary for effective
implementation of an SPCC program, or any other program (business or
otherwise). As a matter of practice, it would be extremely difficult
for a facility owner or operator to be able to follow the regulatory
requirements and to comply with all the recordkeeping components
without the documentation that is the Plan itself. The Plan also serves
as an important communication tool for both management and operators at
the facility. The sole action of having to document all of the
requirements can assist in uncovering flaws in the program
implementation, and may serve as a tool to correct them. The Plan is
also used to communicate these procedures and measures to employees.
Additionally, the documentation of compliance with the rule's
requirements in a written Plan serves as a facility specific oil spill
response and prevention planning exercise which is designed to improve
oil spill prevention.
c. Alternative Options Considered
    Many commenters believed, and supported the Agency's proposal to
not include, a capacity threshold qualifier. There was also significant
support for the USWAG multi-tiered option for electrical equipment,
with some commenters suggesting that the Agency differentiate between
electrical and other oil-filled operational equipment and then adopt
the USWAG proposal providing an exemption for most small equipment.
Other commenters specifically commended EPA for not including a volume
threshold for applicability of relief based on lack of data to suggest
that large oil-filled equipment have greater potential for discharge
over small oil-filled equipment. However, these commenters indicated
that small equipment should be exempt because of lack of spill data.
Multiple commenters requested exemption or deferral requirements in the
same manner as proposed for farms. Others requested suspension of the
requirements.
    The Agency agrees with commenters that no threshold qualifier is
necessary to allow for an alternative means of compliance with
secondary containment requirements for oil-filled operational
equipment. The alternative measure is appropriate based on the type of
equipment, i.e., the oil is intrinsic to the operational equipment and
present solely to support the apparatus and there is minimal oil
throughput because such equipment does not require frequent transfers
of oil. The Agency did not finalize the multi-tiered approach for
electrical equipment to allow for an exemption for smaller pieces of
oil-filled operational equipment because we believe there is still a
reasonable potential for discharges from oil-filled operational
equipment with an oil storage capacity of 1,320 gallons or less, thus
coverage by some type of SPCC Plan is warranted. An exemption of these
smaller pieces of oil-filled operational equipment could in some cases
allow for large amounts of aggregate capacity that would not be counted
for SPCC or FRP purposes, and would therefore be unregulated, posing a
threat to the environment. However, in the July 17, 2002 Federal
Register notice, EPA stated ``We believe that it is not necessary to
apply SPCC or FRP rules requiring measures like secondary containment,
inspections, or integrity testing, to containers smaller than 55
gallons storing oil because a discharge from these containers generally
poses a smaller risk to the environment.'' (67 FR 47066). Oil-filled
operational equipment with a capacity of less than 55 gallons is not
subject to the rule.
    Oil-filled electrical and operating equipment share common
characteristics. They both typically have minimal oil throughput
because such equipment does not require frequent transfers of oil.
Further, the oil contained in oil-filled operational equipment, such as
cooling or lubricating oil, is intrinsic to the operation of the device
and facilitates the function of the equipment. Should oil-filled
electrical equipment fail, utilities responsible for such equipment
have strong economic incentives to prevent power outages, to discover
and respond to an outage, and to correct the conditions that produced
the outage as quickly as possible to prevent an oil discharge.
Similarly, when other critical oil-filled operating equipment fails,
the industry sectors responsible for such equipment also have strong
incentives to respond and address failures to avoid disruption in
business and costs of a cleanup. In addition, oil-filled operational
equipment often is subject to routine maintenance and inspections to
ensure proper operation. Therefore, the Agency is not promulgating
different requirements, but believes it is appropriate to offer the
same alternative means of compliance with the general secondary
containment requirements of Sec.  112.7(c) to both oil-filled
electrical and operational equipment. Both types of equipment are
addressed in the definition of oil-filled operational equipment.
    The Agency has decided not to provide an indefinite extension or
suspension for owners and operators of facilities with oil-filled
operational equipment. The regulated community, particularly owners and
operators of electrical facilities, identified secondary containment
for oil-filled operational equipment as one of its major cost concerns.
Today's rule addresses that concern and offers an alternative means of
compliance for oil-filled operational equipment, while maintaining
protection of human health and the environment.
5. Qualified Oil-Filled Operational Equipment and Qualified Facilities
Overlap
    Some facilities will meet the criteria for qualified facilities and
have qualified oil-filled operational equipment on-site. Owners and
operators of such facilities are able to benefit from both of the
alternative compliance approaches finalized in today's rule. The owner
or operator can choose to develop an oil spill contingency plan, a
written commitment of manpower, equipment and materials and an
inspection or monitoring program as an alternative to secondary
containment for qualified oil-filled operational equipment. Since no
impracticability determination is necessary for qualified oil-filled
operational equipment, the owner or operator can self-certify his/her
SPCC Plan and is not required to have a PE develop and certify the
contingency plan for the qualified oil-filled operational equipment.
The responsibility of preparing a contingency plan and identifying the
necessary equipment, materials and manpower to implement the
contingency plan would fall on the owner or operator of the qualified
facility.

C. Motive Power

    In the proposed rule, EPA addressed specific types of motor
vehicles (including aircraft, buses, sport utility vehicles, small
construction vehicles, cherry pickers, self-propelled cranes, self-
propelled aviation ground service equipment vehicles, self-propelled
forestry, agricultural, construction, and excavation vehicles and
locomotives) that contain oil in capacities greater than or equal to 55
gallons solely for the purpose of providing fuel for propulsion, or
solely to facilitate the operation of the vehicle, such as lubrication
of moving parts or operation of onboard hydraulic equipment. Such oil
storage containers are technically subject to the SPCC rule, including
the requirement for secondary containment and other SPCC requirements.
This means that heavy equipment dealers, commercial truck dealers, or
certain parking lots may be subject to the SPCC requirements (including
bulk storage secondary containment, inspection, and overfill
protection) solely because of the presence of motive power containers.
EPA never intended to regulate these motive power containers or
facilities where these vehicles might be located and who are not
otherwise subject to the SPCC requirements because of the
impracticability of application of the SPCC requirements to such
vehicles. These individually provide their own means of propulsion from
location to location within or between facilities. The management,
record keeping, and compliance with the spill prevention requirements
associated with motive power containers would be difficult due to their
movement throughout and between facilities. For example, a truck with a
large fuel tank and associated large capacity hydraulic units that
moves throughout a facility and between facilities would require
tracking and containment under the SPCC requirements. This is
impracticable because such vehicles are not stationary or located in a
specific operational area, as is the case with mobile non-vehicular
mobile/portable containers that are placed in specific oil handling or
operational areas. Motor vehicles with a storage tank capacity of 55
gallons or greater, such as a number of semi-rigs delivering materials
to an otherwise regulated SPCC facility that enter and leave a facility
on a routine basis would provide a significant challenge for compliance
with the SPCC requirements. Finally, these containers are either ``end
use'' fuel tanks or oil-filled operational equipment in which transfers
from the container are rare unlike other mobile portable containers. To
correct this unintended application of the SPCC rule, EPA proposed to
exempt motive power containers from the SPCC requirements. Commenters
generally favored this proposal and agreed that subjecting motive power
containers to SPCC requirements would be impracticable. In today's
action, EPA is clarifying its position on motive power containers
associated with self-propelled motor vehicles by finalizing the
proposed definition and exemption.
    The Agency believes that the general protection and the spill
response and planning activities in place at an otherwise regulated
SPCC facility will address any discharges associated with these motive
power containers.
    For those facilities whose capacity is comprised solely of motive
power containers, today's action may result in the facility no longer
being subject to the SPCC requirements. However, for owners and
operators of these facilities, EPA maintains the authority, under
311(j)(1)(C) of the CWA, to impose requirements to prevent oil
discharges from motive power containers. EPA believes that owners and
operators of these facilities will continue to act prudently to prevent
discharges from motive power containers from reaching navigable waters
and owners and operators of non-transportation-related facilities that
fail to do so can be required by the EPA Regional Administrator (RA) to
develop an SPCC Plan. The RA has the option under Sec.  112.1(f) to
require owners and operators of facilities, including those with motive
power containers, to prepare and implement an SPCC Plan or any
applicable part, if a determination is made that it is necessary to
prevent a discharge of oil into waters of the United States. EPA will
continue to encourage owners and operators of facilities that are no
longer regulated under the SPCC rule, as a result of today's action, to
provide prevention, planning and response measures to prevent oil
discharges from motive power containers.
1. Definition of Motive Power
    One commenter generally supported the definition as proposed.
Several other commenters opposed the proposed definition and additional
comments were submitted with alternate definitions of motive power
containers. Those who opposed the definition indicated that it will not
effectuate its purpose, simply because the gas tank, for example, is
not used solely to power the movement of a motor vehicle. Other reasons
for opposition note that the definition may not be broad enough, and it
should be modified to clarify the scope of ``motor vehicle.'' The
definition may not cover all motive power configurations, and it may
not cover ground service equipment, including ground service equipment
in the airport industry sector.
    Recommendations included expanding the definition to include other
mobile equipment like forestry and mining equipment. Other commenters
indicated that the scope of the definition should be modified to
clarify that a motor vehicle includes not just automobiles and trucks,
but all types of motor vehicles including cranes, cherry pickers, or
production drill rigs at mining sites and equipment that may be
stationary for a temporary duration. Commenters also suggested that the
definition be revised to cover various motive power configurations.
    EPA agrees with the commenters that the scope of the definition
should be clarified to include motor vehicle bulk storage containers
that serve a non-operational purpose in addition to the propulsion of
the motor vehicle (for example, a bulk storage container that supplies
fuel to an engine which provides the propulsion for that motor vehicle,
as well as its auxiliary units and functions (i.e., heaters, air
conditioning units, and electrical power generation, etc.). As noted by
commenters, the term ``solely'' in the definition of motive power
containers limits the inclusion of motor power fuel tanks that serve
one of the non-operational functions listed above in addition to
providing fuel for propulsion of the motor vehicle. In response to this
comment, EPA has removed the word ``solely'' and replaced it with the
word ``primarily.'' The definition of motive power containers only
applies to motor vehicles where the primary purpose of the bulk storage
container is to supply fuel to power the movement of the vehicle and,
secondly, power other equipment on board the vehicle, so long as no
further distribution (transfers) of oil occurs from the container as in
the case with some mobile refuelers.
    EPA agrees with the commenters that additional clarification is
needed to describe the type of motor vehicles covered under the
definition of motive power containers. Only motor vehicles which
provide their own means of propulsion fall within the scope of this
definition for the purposes of 40 CFR part 112. For example, aircraft,
cherry pickers, self-propelled cranes, self-propelled aviation ground
service equipment vehicles, self-propelled heavy (forestry,
agricultural, mining, excavation and construction) vehicles and
locomotives, all of which

individually provide their own means of propulsion from location to
location within a facility or between facilities, are considered motor
vehicles for the purposes of this definition and 40 CFR part 112.
However, towed aviation ground service equipment, non-self-propelled
construction/cargo cranes, non-self-propelled (forestry, agricultural,
mining, excavation or construction) equipment, diesel powered
generators, fire pumps, and compressors are examples of oil-filled
equipment and bulk storage containers not considered motor vehicles for
the purposes of this definition because they do not provide their own
means of propulsion. The exemption was based on the impracticability of
application of SPCC requirements to motor vehicles and their unique
self-propelled capability of movement within and between facilities,
typically without restriction.
2. Exemption
    This final rule amendment exempts motive power containers, as
defined above, from SPCC rule applicability by adding a new paragraph
(7) under the general applicability section, Sec.  112.1(d).
Furthermore, the capacity of these storage containers are not counted
toward facility oil storage capacity under Sec.  112.1(d)(2). The RA
has the option under Sec.  112.1(f), however, to require owners and
operators of facilities, including those with motive power containers,
to prepare and implement an SPCC Plan or any applicable part, if a
determination is made that it is necessary in order to prevent a
discharge of oil into waters of the United States, or adjoining
shorelines.
    EPA notes that although this amendment provides an exemption from
the SPCC requirements for the fuel tanks and ancillary onboard oil-
filled operational equipment of motor vehicles, the oil transfer
activities occurring within an SPCC-covered facility continue to be
regulated. An example of such an activity would be the transfer of oil
from an on-site tank via a dispenser to a motive power container. This
transfer activity is subject to the general secondary containment
requirements of Sec.  112.7(c).
    An onboard bulk storage container that supplies oil for the
movement of a vehicle or operation of onboard equipment, and at the
same time, is used for the distribution or storage of this oil, is not
eligible for this exemption. For example, a mobile refueler that has an
onboard bulk storage container used to distribute fuel to other
vehicles on a site may also draw its engine fuel (for propulsion) from
that bulk container. However, such bulk storage containers (on a mobile
refueler, as defined in today's rule under 112.2) are exempt from the
sized secondary containment requirements in Sec. Sec.  112.8(c)(2) and
(11) and 112.12(c)(2) and (11), as applicable (see Section D below).
    EPA is also not extending the exemption for motive power containers
to oil drilling and workover equipment, including rigs. The Agency
believes that because of the unique nature of oil drilling and workover
rig operations and the large amounts and high flow rates of oil
associated with these activities, it would not be appropriate or
environmentally sound to exempt them from the SPCC requirements, and
thus they remain subject to 40 CFR part 112. Although drilling and
workover rigs are not exempt, other types of motive power containers
located at drilling or workover facilities (i.e., trucks, automobiles,
bulldozers, seismic exploration vehicles, or other earth-moving
equipment) are exempted. The Agency believes that the general