The United States Environmental Protection Agency (EPA) issued regulations amending the requirements applicable to facility owners and operators who store or handle oil at non-transportation-related facilities. Oil spill prevention, control and countermeasure regulations were initially promulgated by EPA under authority of the Oil Pollution Prevention regulations promulgated pursuant to the federal Clean Water Act. Generally, a facility that stored oil of any kind in quantities above certain threshold levels was required to abide by a Spill Prevention Control, and Countermeasures (SPCC) Plan. The SPCC regulations spelled-out fairly prescriptive requirements for development and implementation of SPCC Plans that industry often criticized as being too restrictive, too invasive to the efficient and effective operation of manufacturing and not reasonably calculated to actually protect the environment. The new regulations represent the culmination of EPA’s decade-long process of studying criticisms to the original regulations, surveying the regulated community for input on enhancing efficiency to the program, and proposing revised regulations. As is often the case, the revised regulations present a “mixed bag” of good news, bad news and “watch-outs” for the regulated community.
The new rules become effective in February, 2006 and basically require that all facilities managing oil evaluate or re-evaluate SPCC compliance status. The new February, 2006 deadline represents the second extension EPA has issued since the rule revision was first published in July, 2002.
If an SPCC Plan is already in place at the facility, the owner or operator must evaluate the SPCC Plan and management program against the new regulations, and make revisions to the plan and the program as necessary. If the owner or operator determines that an SPCC Plan is required as a result of the new regulations, or that the new regulations mandate revision of the existing SPCC Plan, the owner or operator has six months from the effective date to prepare or revise the SPCC Plan. The owner or operator will then have another six months to implement the SPCC Plan. The remainder of this article highlights only a few of the more significant changes and clarifications to the SPCC regulations that require each facility owner or operator to take a “fresh look” at operations and reconsider potential application of the SPCC regulations.
The original SPCC regulations applied to any facility that used an above-ground oil container that exceeded 660 gallons, had an above-ground oil storage capacity exceeding 1,320 gallons, or had underground storage tank capacity of more than 42,000 gallons. The new regulations remove the 660 gallon single-container size trigger. However, the applicability threshold remains at a total oil capacity of 1,320 gallons of above-ground storage. Completely buried storage tanks subject to the technical requirements of a federal or state underground storage tank (UST) program are no longer required to comply with the SPCC provisions, except for the facility diagram requirement. Because the UST program can sometimes apply to an aboveground tank, there may still be some overlap between the two programs. ( For example, an aboveground tank with significant buried piping is subject to the UST program.)
The original SPCC regulations were silent on any minimum container size. Consequently, a facility that stored 1,321 or more one-gallon cans of paint fell within the SPCC regulations and was required to abide by an SPCC Plan. The new regulations present significant relief on this point by exempting from the storage capacity threshold calculation, oil containers with a storage capacity of less than 55 gallons. Importantly, the nearly universal storage container, the 55-gallon drum, is above the de minimis threshold, and must be included in the storage capacity calculation.
The original SPCC regulations prompted spirited debate between EPA and the regulated community on whether the regulations applied to situations where the oil was “in use.” (For example, oil would be in use in hydraulic equipment or electric transformers. The new SPCC regulations clarify EPA’s intent that the so-called, in-use oil, is subject to the SPCC requirements. However, the new regulations make distinctions in operational requirements for “bulk storage” and “oil-filled electrical, operating, or manufacturing equipment.”
The original SPCC regulations applied to “oil of any kind.” Owners and operators of facilities storing large quantities of non-petroleum oils, such as animal, vegetable or mineral oils were subject to the SPCC regulations. In 1995, Congress weighed-in on the issue with the Edible Oil Regulatory Reform Act, which did not exempt non-petroleum oils, but required that EPA consider the different types of oil (animal, vegetable, mineral/petroleum) when developing SPCC requirements. The new SPCC regulations further clarify EPA’s position that “oil of any kind” means just that, and owners or operators of facilities handling animal, vegetable, or mineral oils must be just as vigilant as owners and operators of facilities managing petroleum-derived oil. The preamble to the new rules hints that EPA may, someday, develop regulations that actually differentiate requirements for facilities storing or using the various classes of oil. For now, there is no differentiation even though the regulation provides a separate subpart for animal fats and oils and greases, and fish and marine mammal oils; and for vegetable oils, including oils from seeds, nuts, fruits, and kernels.
In what will certainly prove to be a “big surprise” to owners and operators, the preamble to the new regulations also addresses EPA’s intent to regulate oil in a solid form. The preamble to the new regulations makes clear that EPA expects facilities processing solid oils, such as animal fats, to evaluate storage capacity and adhere to the SPCC Plan requirements when the thresholds are exceeded. EPA justifies regulating solids, such as animal fat, under a theory that solid fats can be just as harmful as liquid oils.
The new regulations provide some clarification on EPA’s intent with respect to spill containment. The original regulations did not define a precise method by which the imperviousness of a containment structure could be measured. EPA had proposed that to be “sufficiently impervious,” the structure must be impermeable for 72 hours. The bright-line test was removed from the final regulations in favor of enhanced flexibility. However, that flexibility places additional burden on the preparer of the SPCC Plan to document that the secondary containment is sufficiently impervious. EPA expects that the plant will describe how the secondary containment is designed to meet and maintain the standard. By way of example, control and/or removal of vegetation may be necessary to maintain the impervious integrity of the secondary containment. Repairs of the containment must be made in conformance with good engineering practices. EPA also expects that owners or operators will monitor the imperviousness for effectiveness, in order to be sure that the containment method that is chosen remains impervious to oil.
The new rules, and associated preamble provide much needed clarification on loading and unloading operations. EPA states, unequivocally, that loading and unloading operations must satisfy secondary containment requirements, be equipped with warning systems, and provide for inspection of trucks or cars for discharges. Secondary containment for the tank truck or rail car must be capable of containing the maximum capacity of any single compartment plus the volume held in any piping and hoses. A warning system must prevent vehicles from departing before complete disconnection of flexible or fixed oil transfer lines. Finally, an inspection for discharges must occur before the tank truck or rail car departs.
The new regulations provide that EPA will tolerate some variability in the format of the SPCC Plan. In the past, plan writers had to follow precise sequencing of topics as prescribed by the regulations. EPA will now accept any plan format so long as all requisite topics are covered. Indeed, EPA will now accept an Integrated Contingency Plan, a State SPCC plan, or a Best Management Practices Plan which is a component of the Stormwater Pollution Prevention Plan. There is one very important caveat to utilizing one of these alternate plans in lieu of a single-purpose SPCC Plan. The owner or operator must prepare a cross-reference section identifying the location of elements for the SPCC plan and the location in the alternate plan.
From the beginning, the SPCC regulations required that all SPCC Plans be certified by a professional engineer (“PE”) who had to attest that the plan had been prepared in accordance with good engineering practice. The PE’s role and responsibilities are greatly enhanced under the new regulations. Now, the PE must attest: (i) to familiarity with the requirements of the SPCC rule; (ii) that he or his agent visited and examined the facility; (iii) that the SPCC Plan was prepared in accordance with good engineering practice, including consideration of applicable industry standards, and with the requirements of the SPCC rule; (iv) that procedures for required inspections and testing have been established; and (v) that the Plan is adequate for the facility. Importantly, EPA rejected an effort to require that the PE be licensed in the same state as the facility, finding that the SPCC program is national in scope and therefore state expertise is unnecessary. EPA also rejected an effort to require that the PE be independent of the facility, finding that the professional integrity of a PE and the professional oversight of boards licensing PEs are sufficient to prevent any abuses. EPA also clarified that PE certification is not required for revisions that do not require engineering judgment, such as telephone numbers, listing of personnel, some product changes, and ownership changes.
The new rules also provide needed clarification and guidance on training. Now, only “oil-handling personnel” are subject to the training requirements. Training can be incorporated into already existing training programs required by other federal or state environmental programs. The training must include, at a minimum: the operation and maintenance of equipment to prevent the discharge of oil; discharge procedure protocols; applicable pollution control laws, rules, and regulations; general facility operations; and, the contents of the facility SPCC Plan. Part of the delay in EPA’s implementation of the new rule was an appeal field by several stakeholders. The regulatory appeal was settled by EPA publishing several clarifications. One clarification pertains to the requirement for integrity testing of bulk storage containers. Through the clarification, EPA has stated that a well-designed shop-built container with a capacity of 30,000 gallons or less does not need to be tested for integrity so long as the tank is isolated/elevated from the ground and routinely visually inspected.
Settlement of the appeal also involved EPA issuing a clarification that involved the requirement to “fully fence each facility handling, processing or storing oil, and lock and/or guard entrance gates when the facility is not in production or is unattended.” EPA has stated that fencing each discrete area directly involved in the handling, processing and storage of oil would provide equivalent environmental protection to fencing the entire footprint of the facility.
In supplemental rulemaking, the EPA provided insight on the term “impracticability.” The revised rule stated that where secondary containment is “not practicable” a facility may use a contingency plan instead. The appeal sought clarification on whether cost would play a role in determining impracticability. This supplemental rulemaking makes clear that cost does not factor into the evaluation. Instead, the impracticability determination shall be based upon geographic limitations, local zoning and ordinances, fire prevention standards, or other good engineering practice reasons.
During the extension of time, owners and operators should review all facility operations involving “oil” and identify potential application of the new SPCC regulations. In some cases, the owner or operator will be pleasantly surprised to find that the burden of SPCC program requirements are partially or totally lifted. Undoubtedly, there will be owners or operators who discover that the new regulations create new burdens for the facility’s SPCC program. Finally, and hopefully, rarely, there will be owners or operators who discover that their facility has, for many years, been subject to the SPCC regulations, but only realized the scope of the SPCC regulatory program through the new SPCC regulations. For those owners and operators in the latter category, the new SPCC regulations present an opportunity to gain compliance with the program requirements.