On Nov. 9, 2009, EPA issued final Spill Prevention, Control, and Countermeasure (SPCC) regulations, concluding a 17-year rulemaking process. Following a 1991 proposed rulemaking, EPA issued rule changes in July 2002, December 2006, and December 2008. However, the requirement to comply with these rule changes has been on hold and the December 2008 rule did not go into effect before the change in Administration. In February 2009, EPA reopened the December 2008 rule and since then the regulated community has not known the actual set of SPCC requirements for which they should be planning. Fortunately, the November 9th final rule retains much of the December 2008 rule, deleting only three provisions, and the regulated community can now take action to update their SPCC plans to meet the current Nov. 10, 2010 compliance deadline.

Unchanged Provisions From The December 2008 Final Rule

The November 2009 final rule does not change or makes only technical changes (as noted) to the following provisions of the December 2008 final rule:

  • Exemptions for hot mixed asphalt (HMA) and HMA containers, pesticide application equipment and related mix containers, and heating oil containers at single-family residences, including those located at farms;
  • Amended definition of "facility" to clarify the existing flexibility;
  • Amended facility diagram requirements to provide additional flexibility;
  • New definition of "loading/unloading rack," as well as amended provisions for this equipment;
  • Amended general secondary containment requirements to provide more clarity;
  • Exemption of non-transportation-related tank trucks from the sized secondary containment;
  • Amended security requirements for all facilities;
  • Amended integrity testing requirements to allow the use of industry standards;
  • Amended integrity testing requirements for containers that store animal fats and vegetable oils and meet certain criteria;
  • Amended definition of "production facility";
  • Clarification that drilling and workover activities are not subject to the provisions at §112.9;
  • Exemption for certain intra-facility gathering lines at oil production facilities;
  • More prescriptive requirements for a flowline/intra-facility gathering line maintenance program for all oil production facilities and an alternative compliance option for flowlines and intrafacility gathering lines in lieu of all secondary containment;
  • Alternative compliance option for flow-through process vessels at oil production facilities in lieu of the sized secondary containment requirements;
  • Definition of "produced water container" and alternative compliance measures for these containers (removing free-phase oil) in lieu of sized secondary containment requirements;
  • Clarification of the definition of "permanently closed" as it applies to an oil production facility;
  • Exemption for underground oil storage tanks that supply emergency diesel generators at nuclear power generation facilities (with a technical amendment);
  • Designation of a subset of "Tier I" qualified facilities with a set of streamlined SPCC rule requirements (with technical amendments to the template).

These new provisions become effective on Jan. 14, 2010.

November 2009 Revisions To December 2008 Rule

The November 2009 final rule does delete three provisions that were in the December 2008 final rule.

First, EPA deletes the language in 40 C.F.R. § 112.7(h) specifically excluding farms and oil production facilities from the provision regulating loading racks. EPA explained in the December 2008 final rule that it does not believe these facilities have loading racks. Rather than exempting those facilities, EPA now indicates that "a specific exclusion for facilities based on the assumption that they do not have loading/unloading racks is unnecessary."

Second, the November 2009 final rule deletes language in the December 2008 rule establishing alternative criteria for identifying oil production facilities as "qualified facilities." "Qualified facilities" do not require professional engineer certification for their SPCC plans, and fall under two tiers:

  1. no more than 10,000 gallons of aggregate above-ground oil storage capacity and no single tank greater than 5000 gallons (tier I); or
  2. no more than 10,000 gallons above-ground storage capacity but with a single tank greater than 5,000 gallons (tier II).

The alternative criteria for oil production facilities in the December 2008 rule were based on the number of "stripper" or "marginal" wells on-site that produce no more than 10 barrels a day. The November 2009 final rule states that EPA now believes that these facilities would pose a risk of a spill unless a professional engineer reviews and certifies the SPCC plan. This change will have consequences for oil production facilities with marginal wells. Based on EPA's estimates, the cost savings from eliminating the need for a professional engineer review at these facilities would have been $30 million a year.

Finally, the November 2009 final rule deletes the exemption in the December 2008 final rule for produced water tanks that would not cause "harm" (i.e., would not create a sheen even if they discharged their entire contents into a water of the United States). To explain the deletion, EPA generally states that the Agency believes produced water containers contain oil in sufficient quantities to cause harm. EPA's decision is enigmatic because EPA's explanation does not seem to justify removing an exemption that specifically applies only to tanks that do not contain oil in sufficient quantities to cause harm. However, because it is unlikely that any facility would have been able to qualify for this exemption, its deletion will likely have no impact on the regulated community.

Future Actions

EPA indicates in the November 2009 final rule that it expects to do the following in the near future:

  • propose another extension (beyond Nov. 10, 2010) of the deadline for compliance with all the SPCC rule changes that have been made since 2002;
  • continue inter-Agency discussions with the Department of Transportation to clarify jurisdiction over facilities described in the February 2000 memorandum "Jurisdiction over Breakout Tanks/Bulk Storage Tanks (Containers) at Transportation-Related and Non- Transportation-Related Facilities;" and
  • update its December 2005 SPCC Guidance for Regional Inspectors to reflect the final rule changes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.