In today's Federal Register, EPA has extended the deadline for compliance with the recently revised Spill Prevention, Control and Countermeasure ("SPCC") Plan requirements. As you may recall, EPA published revised SPCC Plan regulations on July 17, 2002. The 2002 rule revisions modify and expand the scope of activities potentially requiring a SPCC Plan, requiring that existing facilities amend SPCC Plans by February 17, 2003 and implement those plans by August 18, 2003.
The 2002 SPCC Plan requirements apply to, among other things, any owner or operator of a non-transportation related facility engaged in drilling, producing, gathering, storing, processing, refining, transferring, distributing, using or consuming oil and oil products that could reasonably be expected to discharge oil in quantities that may be harmful into or upon the navigable waters of the United States. See Revised Rule at 40 CFR 112.1(b) (emphasis added). The rule also amended the general applicability provisions indicating that SPCC Plan requirements could apply to facilities with the potential for discharges that "affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States. . . ." 40 CFR 112.1(b). In order to track the changes to the SPCC requirements, EPA published a table that cross references the revised provisions with the existing rules. See ... EPA Table
On November 14, 2002, the American Petroleum Institute ("API") filed a complaint in the D.C. District Court seeking a review of the final agency action associated with the SPCC Plan rulemaking. The Complaint maintained, among other things, that the revised definition of navigable waters exceeds EPA's statutory authority as reasoned by the Supreme Court in the Solid Waste Agency of Northern Cook County ("SWANCC") decision (the isolated waters decision under Section 404 of the Clean Water Act). API also objected to EPA's elimination of economic considerations in evaluating secondary containment obligations. The issues identified by API and other stakeholders have resulted in EPA's decision to delay implementation of the SPCC Plan rule revisions.
EPA is publishing two rules pertaining to the deadlines. In today's Federal Register, EPA proposed an interim final rule that will extend the revised SPCC Plan compliance deadlines for 60 days. EPA is also expected to propose a rule later this week or next week that would further extend the compliance deadlines. EPA would reportedly publish guidance and substantive rule changes during that time period.
Attached is a link to today's rule changes. Parsons Behle & Latimer will continue to track these developments; please call me with any questions.
Lisa Kirschner
Direct Phone: 801.536.6649
Fax: 801.536.6111
E-mail: LKirschner@pblutah.com.