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					                                                                                          Monday,
                                                                                          December 12, 2005




                                                                                          Part III

                                                                                          Environmental
                                                                                          Protection Agency
                                                                                          40 CFR Part 112
                                                                                          Oil Pollution Prevention; Spill Prevention,
                                                                                          Control, and Countermeasure Plan
                                                                                          Requirements—Amendments; Proposed
                                                                                          Rule




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     73524                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     ENVIRONMENTAL PROTECTION                                Docket Center (EPA/DC), Docket ID No.                 number to make an appointment to view
     AGENCY                                                  EPA–HQ–OPA–2005–0001, 1200                            the docket is 202–566–0276.
                                                             Pennsylvania Avenue, NW.,                             FOR FURTHER INFORMATION CONTACT: For
     40 CFR Part 112                                         Washington, DC 20460.                                 general information, contact the
     [EPA–HQ–OPA–2005–0001; FRL–8007–2]                         • Hand Delivery: Such deliveries are               Superfund, TRI, EPCRA, RMP and Oil
                                                             only accepted during the Docket’s                     Information Center at 800–424–9346 or
     RIN 2050–AG23                                           normal hours of operation, and special                TDD 800–553–7672 (hearing impaired).
                                                             arrangements should be made for                       In the Washington, DC metropolitan
     Oil Pollution Prevention; Spill
                                                             deliveries of boxed information.                      area, call 703–412–9810 or TDD 703–
     Prevention, Control, and
                                                                Instructions: Direct your comments to              412–3323. For more detailed
     Countermeasure Plan Requirements—
                                                             Docket ID No. EPA–HQ–OPA–2005–                        information on specific aspects of this
     Amendments                                                                                                    proposed rule, contact either Vanessa E.
                                                             0001. EPA’s policy is that all comments
     AGENCY:  Environmental Protection                       received will be included in the public               Rodriguez at 202–564–7913
     Agency.                                                 docket without change and may be                      (rodriguez.vanessa@epa.gov), or Mark
     ACTION: Proposed rule.                                  made available online at                              W. Howard at 202–564–1964
                                                             www.regulations.gov, including any                    (howard.markw@epa.gov), U.S.
     SUMMARY: The Environmental Protection                   personal information provided, unless                 Environmental Protection Agency, 1200
     Agency (EPA or the Agency) is today                     the comment includes information                      Pennsylvania Avenue, NW.,
     proposing to amend the Spill                            claimed to be Confidential Business                   Washington, DC, 20460–0002, Mail
     Prevention, Control, and                                Information (CBI) or other information                Code 5104A.
     Countermeasure (SPCC) Plan                              whose disclosure is restricted by statute.            SUPPLEMENTARY INFORMATION: This
     requirements to reduce the regulatory                   Do not submit information that you                    proposed rule would amend the
     burden for certain facilities by:                       consider to be CBI or otherwise                       requirements for Spill Prevention,
     Providing an option that would allow                    protected through www.regulations.gov.                Control, and Countermeasure (SPCC)
     owners/operators of facilities that store               The www.regulations.gov Web site is an                Plans in 40 CFR part 112. First, the
     less than 10,000 gallons of oil and meet                ‘‘anonymous access’’ system, which                    proposal would provide an alternative
     other qualifying criteria to self-certify               means EPA will not know your identity                 option for the owner/operator of a
     their SPCC Plans, in lieu of review and                 or contact information unless you                     facility that meets specific qualifying
     certification by a Professional Engineer;               provide it in the body of your comment.               criteria (hereafter referred to as a
     providing an alternative to the                         If you submit an electronic comment,                  ‘‘qualified facility’’) to self-certify that
     secondary containment requirement,                      EPA recommends that you include your                  the facility’s SPCC Plan complies with
     without requiring a determination of                    name and other contact information in                 40 CFR part 112, in lieu of the
     impracticability, for facilities that have              the body of the comment and with any                  requirement for a Professional
     certain types of oil-filled equipment;                  disk or CD–ROM you submit. If EPA                     Engineer’s (PE) review and certification.
     defining and providing an exemption                     cannot read your comment due to                       Second, the proposal would provide an
     for motive power containers; and                        technical difficulties and cannot contact             alternative option for the owner/
     exempting airport mobile refuelers from                 you for clarification, EPA may not be                 operator of a facility with oil-filled
     the specifically sized secondary                        able to consider your comment.                        operational equipment that meets
     containment requirements for bulk                       Electronic files should avoid the use of              specific qualifying criterion (hereafter
     storage containers. In addition, the                    special characters, any form of                       referred to as ‘‘qualified oil-filled
     Agency also proposes to remove and                      encryption, and be free of any defects or             operational equipment’’) to establish
     reserve certain SPCC requirements for                   viruses. Comments and suggestions                     and document an inspection or
     animal fats and vegetable oils and                      regarding the scope of any future                     monitoring program, prepare a
     proposes a separate extension of the                    rulemaking should be clearly                          contingency plan, and provide a written
     compliance dates for farms. In                          differentiated from comments specific to              commitment of manpower, equipment
     proposing these changes, EPA is                         today’s proposal (e.g., label Suggestions             and materials in lieu of secondary
     significantly reducing the burden                       for Future Rulemaking and Comments                    containment for qualified oil-filled
     imposed on the regulated community in                   on Current Proposal).                                 operational equipment without being
     complying with the SPCC requirements,                      Docket: All documents in the docket                required to make an individual
     while maintaining protection of human                   are listed in the www.regulations.gov                 impracticability determination. Third,
     health and the environment. Further,                    index. Although listed in the index,                  the proposal would define and provide
     the Agency requests comments on the                     some information is not publicly                      an exemption for motive power
     potential scope of future rulemaking. In                available, e.g., CBI or other information             containers. Fourth, the proposal would
     a separate document in today’s Federal                  whose disclosure is restricted by a                   exempt airport mobile refuelers from
     Register, the Agency is proposing to                    statute. Certain other material, such as              specifically sized secondary
     extend the compliance dates for all                     copyrighted material, will be publicly                containment requirements for bulk
     facilities.                                             available only in hard copy. Publicly                 storage containers. Fifth, the proposal
     DATES: Comments must be received on                     available docket materials are available              removes and reserves certain SPCC
     or before February 10, 2006.                            either electronically in                              requirements for animal fats and
     ADDRESSES: Submit your comments,                        www.regulations.gov or in hard copy at                vegetable oils. Finally, the proposal
     identified by Docket ID No. EPA–HQ–                     the EPA Docket, EPA/DC, EPA West,                     provides a separate extension of the
     OPA–2005–0001 by one of the following                   Room B102, 1303 Constitution Ave.,                    compliance dates for farms and, in a
     methods:                                                NW., Washington, DC. The Public                       separate notice in today’s Federal
        • Federal Rulemaking Portal:                         Reading Room is open from 8:30 a.m. to                Register, the Agency is proposing to
     www.regulations.gov. Follow the on-line                 4:30 p.m., Monday through Friday,                     extend the compliance dates for all
     instructions for submitting comments.                   excluding legal holidays. The telephone               facilities. The contents of this preamble
        • Mail: The mailing address of the                   number for the Public Reading Room is                 are:
     docket for this rulemaking is EPA                       202–566–1744, and the telephone                       I. General Information



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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                             73525

     II. Entities Potentially Affected by This               I. General Information                                in § 112.1(b) from any oil-filled
           Proposed Rule                                                                                           operational equipment during the ten
     III. Statutory Authority and Delegation of                 To reduce regulatory burden for
                                                             qualified facilities and to address                   years prior to the Plan certification date
           Authority
                                                             several concerns involving oil-filled                 or, since becoming subject to the SPCC
     IV. Background
     V. Today’s Action                                       operational equipment, motive power                   requirements if the facility has been in
        A. Qualified Facilities                              containers, airport mobile refuelers, and             operation for less than ten years.
        1. Eligibility Criteria                                                                                       • EPA proposes to exempt from the
                                                             provisions specific to animal fats and
        a. Total Facility Oil Storage Capacity                                                                     SPCC rule certain motive power
                                                             vegetable oils, EPA proposes to amend
           Threshold                                                                                               containers. Motive power containers are
        b. Reportable Discharge History                      the SPCC Plan requirements in 40 CFR
                                                                                                                   onboard bulk storage containers used
        2. Proposed Requirements for Qualified               part 112. The Agency also proposes a
                                                                                                                   solely to power the movement of a
           Facilities                                        separate extension of the compliance
                                                                                                                   motor vehicle (i.e., fuel tanks), or
        a. Self-Certification and Plan Amendments            dates for farms. Specifically:
                                                                                                                   ancillary onboard oil-filled operational
        b. Environmental Equivalence and                        • EPA proposes an alternative option
           Impracticability Determinations                                                                         equipment (i.e., hydraulics and
                                                             for the owner/operator of a qualified
        c. SPCC Plan Exceptions                                                                                    lubrication systems) used solely to
                                                             facility to self-certify his/her SPCC Plan,
        3. Alternative Options Considered                                                                          facilitate its operation. This exemption
                                                             prepared in accordance with 40 CFR
        a. Extension/Suspension Options                                                                            would not apply to transfers of fuel or
        b. Multi-tiered Structure                            part 112, in lieu of review and
                                                                                                                   other oil into motive power containers
        c. One-time Notification                             certification by a Professional Engineer
                                                                                                                   at an otherwise regulated facility. This
        B. Qualified Oil-filled Operational                  (PE). A qualified facility is a facility
                                                                                                                   exemption would not apply to a bulk
           Equipment                                         subject to the SPCC requirements that
        1. Proposed Oil-Filled Operational
                                                                                                                   storage container mounted on a vehicle
                                                             (1) has a maximum total facility oil
           Equipment Definition                                                                                    for any purpose other than powering the
                                                             storage capacity of 10,000 gallons or                 vehicle itself, for example, a tanker
        2. Eligibility Criteria—Reportable                   less; and (2) had no reportable oil
           Discharge History                                                                                       truck or mobile refueler. Additionally,
        3. Proposed Requirements for Qualified
                                                             discharge as described in § 112.1(b)                  this exemption would not apply to oil
           Oil-Filled Operational Equipment In               during the ten years prior to self-                   drilling or workover equipment,
           Lieu of Secondary Containment                     certification or, since becoming subject              including rigs.
        a. Contingency Plans and a Written                   to the SPCC requirements if the facility                 • EPA proposes to exempt airport
           Commitment of Manpower, Equipment                 has been in operation for less than ten               mobile refuelers from the specifically
           and Materials                                     years. Under this proposed approach,
        b. Inspections or Monitoring Program                                                                       sized secondary containment
                                                             facility owners/operators of qualified                requirements for bulk storage containers
        4. Alternative Options Considered
                                                             facilities choosing to self-certify their             under § 112.8(c)(2) and (11) of the SPCC
        a. Capacity Threshold Qualifier
        b. Multi-Tiered Structure                            SPCC Plans may not deviate from any                   rule. Airport mobile refuelers are
        c. Extension/Suspension Options                      requirement of the SPCC rule under                    vehicles found at airports that have
        5. Qualified Facilities and Qualified Oil-           § 112.7(a)(2) (with two exceptions) and               onboard bulk storage containers
           Filled Operational Equipment Overlap              may not make impracticability                         designed for, or used to, store and
        C. Motive Power                                      determinations in their SPCC Plans as                 transport fuel for transfer into or from
        1. Definition of Motive Power                        described under § 112.7(d). The two                   an aircraft or ground service equipment.
        2. Proposed Exemption                                exceptions are that facility owners/
        3. Alternative Options Considered                                                                          The remaining provisions of § 112.8(c)
                                                             operators of qualified facilities choosing            and the general secondary containment
        a. Equipment-Based Motive Power
           Exemption                                         to self-certify their SPCC Plans would                requirements of § 112.7(c) would still
        b. Threshold-Based Motive Power                      have flexibility with respect to the                  apply to the onboard bulk storage
           Exemption                                         security requirements and container                   containers on airport mobile refuelers
        c. Exclusion From Storage Capacity                   integrity testing.                                    and the transfers associated with this
           Calculation                                          • EPA proposes a definition for oil-               equipment.
        D. Airport Mobile Refuelers                          filled operational equipment and                         • The Agency proposes to amend the
        1. Definition of Airport Mobile Refueler             proposes that owners and operators of                 requirements for animal fats and
        2. Proposed Amended Requirements                     facilities where qualified oil-filled
        E. Animal Fats and Vegetable Oils                                                                          vegetable oils in Subpart C of Part 112
     VI. Proposed Extension of Compliance Dates
                                                             operational equipment is located have                 by removing § 112.13 (requirements for
           for Farms                                         the alternative of preparing an oil spill             onshore oil production facilities),
        A. Eligibility Criteria                              contingency plan and a written                        § 112.14 (requirements for onshore oil
        B. Proposed Compliance Date Extension for            commitment of manpower, equipment                     drilling and workover facilities), and
           Farms                                             and materials, without having to                      § 112.15 (requirements for offshore oil
     VII. Statutory and Executive Order Reviews              determine that secondary containment                  drilling, production, or workover
        A. Executive Order 12866—Regulatory                  is impracticable on an individual                     facilities) because these sections do not
           Planning and Review                               equipment basis (make an individual
        B. Paperwork Reduction Act                                                                                 apply to facilities that handle, store, or
        C. Regulatory Flexibility Act
                                                             impracticability determination as                     transport animal fats and vegetable oils.
        D. Unfunded Mandates Reform Act                      required in § 112.7(d)); and establish                   • EPA proposes to extend the
        E. Executive Order 13132—Federalism                  and document an inspection or                         compliance dates for farms, while the
        F. Executive Order 13175—Consultation                monitoring program for this equipment                 Agency considers whether the unique
           and Coordination With Indian Tribal               to detect equipment failure and/or a                  nature of this sector warrants
           Governments                                       discharge in lieu of providing secondary              differentiated requirements under the
        G. Executive Order 13045—Protection of               containment for qualified oil-filled                  SPCC rule.
           Children From Environmental Health &              operational equipment. Today’s                           • Under the current regulations in
           Safety Risks
        H. Executive Order 13211—Actions That
                                                             proposal would eliminate the current                  § 112.3(a), (b) and (c), a facility that was
           Significantly Affect Energy Supply,               requirement for an individual                         in operation on or before August 16,
           Distribution, or Use                              impracticability determination for oil-               2002 must make any necessary
        I. National Technology Transfer and                  filled operational equipment at a facility            amendments to its SPCC Plan by
           Advancement Act                                   that has had no discharges as described               February 17, 2006, and fully implement


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     73526                        Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     its SPCC Plan by August 18, 2006. A                                       and implement it, if necessary to ensure                                   proposed extension. Regarding
     facility that came into operation after                                   compliance with this part, on or before                                    modifications of the SPCC regulations,
     August 16, 2002 but before August 18,                                     August 18, 2006. In a separate notice in                                   to the extent practicable, EPA will
     2006, must prepare and fully implement                                    today’s Federal Register, the Agency is                                    establish deadlines for compliance
     an SPCC Plan on or before August 18,                                      proposing to extend the compliance                                         implementation that commence one
     2006. The owner or operator of an                                         dates for all facilities to October 31,                                    year after promulgating the regulatory
     onshore or offshore mobile facility must                                  2007. Reviewers should refer to that                                       revisions.
     maintain their Plan, but must amend                                       notice for a complete discussion of the

                                                          II. ENTITIES POTENTIALLY AFFECTED BY THIS PROPOSED RULE
                                                                           Industry category                                                                                           NAICS code

     Crop and Animal Production ...................................................................................................................................                                111–112
     Crude Petroleum and Natural Gas Extraction .........................................................................................................                                               211
     Coal Mining, Non-Metallic Mineral Mining and Quarrying .......................................................................................                                2121/2123/213114/213116
     Electric Power Generation, Transmission, and Distribution ....................................................................................                                                    2211
     Heavy Construction .................................................................................................................................................                               234
     Petroleum and Coal Products Manufacturing .........................................................................................................                                                324
     Other Manufacturing (including animal fats and vegetable oil manufacturing) .......................................................                                                              31–33
     Petroleum Bulk Stations and Terminals ..................................................................................................................                                         42271
     Automotive Rental and Leasing ..............................................................................................................................                                      5321
     Gasoline Service Stations .......................................................................................................................................                                  447
     Fuel Oil Dealers .......................................................................................................................................................                          4543
     Waste Management and Remediation ....................................................................................................................                                              562
     Other Commercial Facilities (including Retail Stores, Apartment Buildings, Wholesalers and Janitorial Services)                                                                    44–45, 51–55, 56172
     Transportation (including Pipelines and Airports), Warehousing, and Marinas ......................................................                                         482–486/488112–48819/4883/
                                                                                                                                                                                       48849/492–493/71393
     Elementary and Secondary Schools, Colleges .......................................................................................................                                                 611
     Federal, State, Local Government and Military Installations ..................................................................................                                                      92
     Hospitals/Nursing and Residential Care Facilities ..................................................................................................                                          621–623



        The list of potentially affected entities                              and DOT, effective February 3, 1994,                                       SPCC Plans in 40 CFR 112.3(a) and (b)
     in the above table may not be                                             has redelegated the responsibility to                                      several times, and has extended the
     exhaustive. The Agency’s aim is to                                        regulate certain offshore facilities from                                  compliance date for 40 CFR 112.3(c)
     provide a guide for readers regarding                                     DOI to EPA.                                                                (see 69 FR 48794 (August 11, 2004) for
     those entities that potentially could be                                                                                                             further discussion on the extensions).
                                                                               IV. Background
     affected by this action. However, this                                                                                                               This action was taken by EPA in order
     action may affect other entities not                                         On July 17, 2002, EPA published a                                       to provide the regulated community
     listed in this table. If you have questions                               final rule amending the Oil Pollution                                      with sufficient time to comply with the
     regarding the applicability of this action                                Prevention regulation (40 CFR part 112)                                    2002 revised rule and to allow the
     to a particular entity, consult the person                                promulgated under the authority of                                         regulated community time to
     listed in the preceding section entitled                                  section 311(j) of the CWA. This revised                                    understand the 2004 clarifications and
     FOR FURTHER INFORMATION CONTACT.                                          rule included requirements for SPCC                                        be able to incorporate them in their
                                                                               Plans and for Facility Response Plans                                      updated SPCC Plans. The current
     III. Statutory Authority and Delegation                                   (FRPs). It also included new subparts                                      deadline for the preparation and
     of Authority                                                              outlining the requirements for various                                     certification of revised SPCC Plans for
        Section 311(j)(1)(C) of the Clean Water                                classes of oil; revised the applicability                                  facilities maintaining their current SPCC
     Act (CWA or the Act), 33 U.S.C.                                           of the regulation; amended the                                             Plan is February 17, 2006. Plans must be
     1321(j)(1)(C), requires the President to                                  requirements for completing SPCC                                           implemented by August 18, 2006.
     issue regulations establishing                                            Plans; and made other modifications (67                                    Facilities that became subject to the
     procedures, methods, equipment, and                                       FR 47042). The revised rule became                                         SPCC rule after August 16, 2002 are
     other requirements to prevent                                             effective on August 16, 2002. After                                        currently required to develop and
     discharges of oil from vessels and                                        publication of this rule, several                                          implement their Plans by August 18,
     facilities and to contain such discharges.                                members of the regulated community                                         2006.
     The President delegated the authority to                                  filed legal challenges to certain aspects                                    On September 20, 2004, EPA
     regulate non-transportation-related                                       of the rule. Most of the issues raised in                                  published two Notices of Data
     onshore facilities to the EPA in                                          the litigation have been settled,                                          Availability (NODAs). The first NODA
     Executive Order 11548 (35 FR 11677,                                       following which EPA published                                              made available and solicited comments
     July 22, 1970), which has been replaced                                   clarifications in the Federal Register to                                  on submissions to EPA suggesting more
     by Executive Order 12777 (56 FR 54757,                                    several aspects of the revised rule (69                                    focused requirements for facilities
     October 22, 1991). A Memorandum of                                        FR 29728, May 25, 2004).1                                                  subject to the SPCC rule that handle oil
     Understanding (MOU) between the U.S.                                         EPA has extended the dates for                                          below a certain threshold amount,
     Department of Transportation (DOT)                                        revising and implementing revised                                          referred to as ‘‘certain facilities’’ (69 FR
     and EPA (36 FR 24080, November 24,                                                                                                                   56182). Streamlined approaches for
                                                                                  1 American Petroleum Institute v. Leavitt, No.
     1971) established the definitions of                                                                                                                 facilities with oil capacities below a
                                                                               1:102CV02247 PLF and consolidated cases (D.D.C.
     transportation- and non-transportation-                                   filed Nov. 14, 2002). The remaining issue to be
                                                                                                                                                          certain threshold were discussed in the
     related facilities. An MOU among EPA,                                     decided concerns the definition of ‘‘navigable                             NODA documents. The second NODA
     the U.S. Department of Interior (DOI),                                    waters’’ in § 112.1.                                                       made available and solicited comments


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                            73527

     on whether alternate regulatory                         other bulk storage container                          requirements for SPCC Plans for all
     requirements would be appropriate for                   requirements under § 112.8(c) and the                 facilities and all types of oil in § 112.7.
     facilities with oil-filled and process                  general secondary containment                         In response to the Edible Oil Regulatory
     equipment (69 FR 56184). EPA has                        requirements under § 112.7(c) which                   Reform Act (EORRA), EPA promulgated
     reviewed the public comments and data                   also applies to the transfers of oil                  separate subparts in part 112 for
     submitted in response to the NODAs in                   associated with airport mobile refuelers.             facilities storing or using various classes
     developing today’s proposal.                               In contrast to a mobile or portable                of oil, but the requirements in each
        In addition, the Agency considered                   bulk storage container such as a mobile               subpart are the same. EORRA required
     regulatory relief for airport mobile                    refueler, a ‘‘motive power container’’ is             most Federal agencies to differentiate
     refuelers in response to concerns raised                an integral part of a motor vehicle                   between and establish separate classes
     by the aviation sector. Airport mobile                  (including aircraft), providing fuel for              for various types of oil, specifically,
     refuelers are vehicles that are used on                 propulsion or providing some other                    between animal fats and oils and
     an airport facility to refuel aircraft and              operational function, such as lubrication             greases, and fish and marine mammal
     ground service equipment (such as belt                  of moving parts or for operation of                   oils and oils of vegetable origin,
     loaders, tractors, luggage transport                    onboard hydraulic equipment. Motive                   including oils from seeds, nuts, and
     vehicles, deicing equipment, and lifts)                 power containers on vehicles used                     kernels; and other oils and greases,
     used at airports. The onboard bulk                      solely at non-transportation related                  including petroleum. The result of this
     storage containers on airport mobile                    facilities fall under EPA jurisdiction and            approach was that the new Subpart C
     refuelers that are used to transport and                are subject to the SPCC regulation.                   included requirements for animal fat
     transfer fuel into or from aircraft and                 Examples of motive power vehicles                     and vegetable oil (AFVO) facilities—
     ground service equipment are                            include, but are not limited to: buses;               onshore facilities (excluding production
     considered mobile or portable bulk                      recreational vehicles; some sport utility             facilities) (§ 112.12), onshore oil
     storage containers under the SPCC rule                  vehicles; construction vehicles; aircraft;            production facilities, (§ 112.14) onshore
     because they are used to store oil prior                farm equipment; and earthmoving                       oil drilling and workover facilities
     to further distribution and use. As such,               equipment (e.g., such as at a drilling or             (§ 112.13), and requirements for offshore
     they are subject to all applicable SPCC                 workover facility). Examples of facilities            oil drilling, production, or workover
     rule provisions, including the sized                    or locations that may be covered by the               facilities (§ 112.15). While the Agency
     secondary containment provisions of                     SPCC requirements solely because of the               recognized that some of these
     § 112.8(c)(2) and (11). These provisions                presence of motive power containers                   requirements are not applicable to
     require the secondary containment,                      include, but are not limited to, heavy                facilities that handle, store or transport
     such as a dike or catchment basin, to be                equipment dealers, commercial truck                   AFVO, these sections were promulgated
     sufficient to contain the capacity of the               dealers, and parking lots.                            because the Agency had not proposed
     largest single compartment or container                    While the concept of ‘‘motive power’’
                                                                                                                   differentiated SPCC requirements for
     and include sufficient freeboard to                     is not directly addressed in the SPCC
                                                                                                                   public notice and comment. As a result,
     contain precipitation.                                  regulation, such vehicle fuel containers
                                                                                                                   the current requirements for petroleum
        Regulated community members in the                   may fall under the definition of ‘‘bulk
                                                                                                                   oils were also applied to animal fats and
     aviation sector have expressed concern                  storage container’’ in § 112.2, while the
                                                                                                                   vegetable oils. EPA is today proposing
     that requiring such sized secondary                     onboard lubrication system may be
                                                                                                                   to remove those sections from the SPCC
     containment for airport mobile refuelers                considered oil-filled operational
                                                                                                                   requirements that are not applicable or
     is not practicable for safety and security              equipment. Therefore, motive power
                                                                                                                   appropriate to animal fats and vegetable
     reasons. (Included in the Docket for                    containers which store oil used for the
                                                                                                                   oils.
     today’s proposal are the letters that have              propulsion of a vehicle are subject to all
     been submitted to EPA regarding this                    the requirements under § 112.8(c) if they                Additionally, EPA has issued the
     matter.) Specifically, it has been argued               have a capacity of 55 gallons or more.                SPCC Guidance for Regional Inspectors.
     that to require these refuelers to park in              These requirements include specifically               The guidance document is intended to
     specially designed secondary                            sized secondary containment for bulk                  assist regional inspectors in reviewing a
     containment areas located within an                     storage containers, integrity testing                 facility’s implementation of the SPCC
     airport’s aircraft operations area could                (visual plus non-destructive testing),                rule. The document is designed to
     create a safety and security hazard                     and a requirement to engineer                         facilitate an understanding of the rule’s
     because it would require grouping of the                containers to avoid discharges (such as               applicability, to help clarify the role of
     vehicles or place impediments in the                    an overfill alarm). Additionally, any oil-            the inspector in the review and
     operations area. Additionally, requiring                filled operational equipment with a                   evaluation of the performance-based
     mobile refuelers to return to                           capacity of 55 gallons or more mounted                SPCC requirements, and to provide a
     containment areas located within the                    on a vehicle are subject to the general               consistent national policy on several
     airport’s tank farm between refueling                   secondary containment requirements                    SPCC-related issues. The guidance is
     operations may increase the risk of                     listed in § 112.7(c).                                 also available to both the owners and
     accidents (and therefore accidental oil                    EPA recognizes that, in most cases,                operators of facilities that may be
     discharge), as the vehicles would travel                the requirements of § 112.8(c), including             subject to the requirements of the SPCC
     with increased frequency through the                    specifically sized secondary                          rule and to the general public on the
     busy aircraft operations area. EPA                      containment and the general secondary                 Agency’s website at www.epa.gov/
     acknowledges these concerns and seeks                   containment requirements under                        oilspill. This guidance is a living
     to provide relief for airport mobile                    § 112.7(c), are not practicable for motive            document and will be revised, as
     refuelers from the specifically sized                   power containers. It has never been                   necessary, to reflect any relevant future
     secondary containment requirements for                  EPA’s intent to regulate motive power                 regulatory amendments in a timely
     bulk storage containers, while                          containers. Therefore, EPA is proposing               manner. Accordingly, EPA welcomes
     protecting the environment from                         to exempt such motive power containers                comments from the regulated
     refueler spills, particularly those                     from the SPCC regulation.                             community and the public on the
     associated with transfers. Consequently,                   In the July 17, 2002 final SPCC rule,              guidance document within 60 days of
     these refuelers remain subject to the                   the Agency promulgated general                        this NPRM, as described on the website.


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     73528                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     The guidance document is a separate                     V. Today’s Action                                     Contingency Plan or NCP) to classify oil
     effort from this rulemaking. EPA does                                                                         discharges based on the location and
                                                             A. Qualified Facilities
     not plan to address comments on the                                                                           size of the discharge (see 40 CFR 300.5).
     guidance document when taking final                        EPA proposes to amend the Oil                      The NCP refers to discharges greater
     action on this rule. Comments on the                    Pollution Prevention regulation (40 CFR               than 10,000 gallons to inland waters as
     guidance document should not be                         part 112) to provide an option to allow               ‘‘major,’’ while other thresholds are
     submitted to the docket for this                        the owner or operator of a facility that              used to classify ‘‘minor’’ and ‘‘medium’’
     rulemaking. Refer to the website                        meets the qualifying criteria (hereafter              discharges. The classes are provided as
     www.epa.gov/oilspill for the text of the                referred to as a ‘‘qualified facility’’) to           guidance to the On-Scene Coordinator
     guidance document and for instructions                  self-certify the facility’s SPCC Plan in              (OSC), and serve as criteria for the
     for providing suggestions on the                        lieu of certification by a licensed                   actions delineated in the NCP. It is
     guidance document. The EPA urges                        professional engineer (PE). EPA                       important to note, however, that the
                                                             proposes to amend § 112.3 to describe                 NCP quantitative thresholds are only
     readers to review the guidance
                                                             the SPCC eligibility criteria that a                  provided to help the OSC determine
     document for assistance in
                                                             regulated facility must meet in order to              response action, and do not imply
     understanding the SPCC rule and                                                                               associated degrees of hazard to the
                                                             be considered a qualified facility. A
     today’s proposal. Pursuant to today’s                   qualified facility would be a facility                public health or welfare, or
     proposal, EPA anticipates issuing an                    subject to the SPCC rule that (1) has an              environmental damage. The NCP size
     updated guidance document in 2006 to                    aggregate facility oil storage capacity of            classes nevertheless define an oil
     reflect finalization of this rulemaking                 10,000 gallons or less; and (2) had no                discharge to inland waters exceeding
     such that inspectors and the regulated                  discharges as described in § 112.1(b)                 10,000 gallons as a major discharge.
     community have accurate and timely                      during the ten years prior to self-                      A discharge of 10,000 gallons or more
     information on SPCC requirements.                       certification or since becoming subject               is also one of the factors used in
        Although the scope of today’s                        to the SPCC requirements if less than                 identifying facilities that must prepare
     proposal was originally intended to                     ten years. Facilities that have been                  and submit a Facility Response Plan
     address only certain targeted areas of                  subject to SPCC for less than ten years,              (FRP) under § 112.20(f)(1). The FRP rule
     the SPCC requirements, the Agency is                    including new facilities, would need to               applies to facilities that could
     including several additional proposed                   demonstrate no discharges as described                reasonably be expected to cause
                                                             in § 112.1(b) only for the period of time             substantial harm to the environment
     modifications to address a number of
                                                             they have been subject to the SPCC rule.              due to a discharge to waters of the U.S.
     issues and concerns raised by the
                                                             Self-certified Plans would not be                     and adjoining shorelines.
     regulated community. As highlighted in                                                                           Second, state regulations also provide
     the EPA Regulatory Agenda and the                       allowed to include ‘‘environmentally
                                                             equivalent’’ alternatives to required Plan            support for the use of a 10,000-gallon
     2005 OMB report on ‘‘Regulatory                                                                               threshold. A number of states
     Reform of the U.S. Manufacturing                        elements as provided in § 112.7(a)(2) or
                                                             to claim impracticability with respect to             differentiate regulatory requirements
     Sector,’’ there are other issues under                                                                        based on a facility’s total storage
     consideration for possible future                       any secondary containment
                                                             requirements as provided in § 112.7(d).               capacity, with some states specifying a
     rulemaking action. The modifications                                                                          10,000-gallon threshold. For example,
                                                             The two exceptions for which the owner
     proposed today do not preclude a future                                                                       Maryland requires that all commercial
                                                             and operator would still be allowed to
     rulemaking on other issues not                                                                                facilities storing more than 10,000
                                                             use environmentally equivalent
     addressed in today’s proposal. Rather,                                                                        gallons of oil obtain an oil operations
                                                             measures are with respect to security
     EPA is working to identify additional                                                                         permit; Minnesota requires facilities
                                                             and integrity testing. Facilities with
     areas where regulatory reform may be                                                                          storing between 10,000 and 1,000,000
                                                             complicated operations and lower
     appropriate. For these additional areas,                                                                      gallons of oil to prepare a prevention
                                                             capacities may find that the current rule
     the Agency expects to issue a proposed                                                                        and response plan; and Oregon places
                                                             offers a more cost-effective method of
     rule in 2007. Additionally, EPA in                                                                            special requirements on marine
                                                             achieving compliance than the proposed
     conjunction with DOE will be                                                                                  facilities storing more than 10,000
                                                             option. Therefore, a qualified facility
     conducting an energy impact analysis of                                                                       gallons of oil. The 10,000-gallon
                                                             could choose to follow the current SPCC
     the SPCC requirements, and will                                                                               threshold is also frequently used in
                                                             requirements (including the PE
     consider the results of this analysis to                                                                      setting requirements for certain storage
                                                             certification) to take advantage of the
     inform the Agency’s deliberations over                                                                        tanks. For example, New York requires
                                                             flexibility offered by PE-certified                   a ‘‘secondary containment system’’
     any future rulemaking. EPA is interested                impracticality determinations and                     around all aboveground storage tanks
     in whether there are other aspects of the               environmentally equivalent measures.                  (ASTs) with a storage capacity greater
     SPCC regulatory requirements, beyond
                                                             1. Eligibility Criteria                               than or equal to 10,000 gallons, and
     those that are addressed in today’s
                                                                                                                   Wisconsin caps the size of ASTs that
     proposal, that should be the focus of                   a. Total Facility Oil Storage Capacity
                                                                                                                   can be used for fueling vehicles at
     future rulemaking. The Agency also                      Threshold
                                                                                                                   10,000 gallons.
     requests that commenters who provide                      EPA proposes to limit qualified                        Finally, 10,000 gallons is a common
     suggestions regarding future rulemaking                 facilities to a total maximum storage                 storage tank size, and EPA believes that
     clearly differentiate them from                         capacity of 10,000 gallons of oil. EPA                setting a maximum capacity at 10,000
     comments submitted on today’s                           considered many different factors before              gallons would address the concerns that
     proposal (e.g., label Suggestions for                   selecting this storage capacity. First,               smaller facilities have raised. In fact, the
     Future Rulemaking and Comments on                       EPA has established 10,000 gallons as a               Small Business Administration Office of
     Current Proposal). The Agency will not                  threshold in several other rules relating             Advocacy suggested that a 10,000-gallon
     address these suggestions when taking                   to oil discharges. This threshold                     threshold is a reasonable volume to
     final action on this proposed rule, but                 quantity is used in the National Oil and              address the concerns of facilities with
     will take them into consideration in                    Hazardous Substances Pollution                        relatively smaller volumes of oil. The
     future rulemaking decisions.                            Contingency Plan (National                            Agency seeks comments on whether this


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                             73529

     threshold appropriately addresses the                   filled operational equipment, the                     account for such occurrences in the
     concerns of facilities with relatively                  Agency believes that a clean spill                    discharge history criterion.
     smaller volumes of oil, while                           history is a suitable criterion for
                                                                                                                   2. Proposed Requirements for Qualified
     maintaining the environmental                           demonstrating eligibility for Plan self-
                                                                                                                   Facilities
     protection intended by the regulation. If               certification, while still effectively
     commenters suggest alternative volume                   maintaining good prevention practices.                a. Self-Certification and Plan
     thresholds, it will be important for the                   Part 110 defines a discharge of oil in             Amendments
     comments to also include a justification                such quantities that may be harmful to                   Some in the regulated community,
     for such alternative volume thresholds                  the public health, welfare, or the                    particularly facilities with relatively
     in order for the Agency to adequately                   environment of the United States as a                 smaller volumes of oil, identified the
     consider the comments submitted. This                   discharge of oil that violates applicable             cost of the PE certification of SPCC
     data would be useful in final rule                      water quality standards; a discharge of               Plans as one of its major concerns. This
     deliberations.                                          oil that causes a film or sheen upon the              view was echoed in the comments
       While EPA recognizes that a discharge                 surface of the water or on adjoining                  submitted in response to the NODAs.
     of less than 10,000 gallons can be                      shorelines; or a discharge of oil that                The Agency has reviewed the
     harmful, regardless of how the NCP                      causes a sludge or emulsion to be                     requirements in light of the information
     defines ‘‘major discharge,’’ EPA believes               deposited beneath the surface of the                  provided and today proposes to allow
     that it is reasonable to allow facilities               water or adjoining shorelines (40 CFR                 for self-certification of SPCC Plans by
     with a capacity of no more than 10,000                  110.3). The Agency refers to such                     owners and operators of qualified
     gallons to prepare and implement a Plan                 discharges in § 112.1(b) of the rule. Any             facilities. With this proposal, the
     that complies with the SPCC rule                        person in charge of a facility must report            Agency is responding to those concerns.
     requirements and provides adequate                      any such discharge of oil from the                    The elements of the proposed self-
     protection against discharges without                   facility to the National Response Center              certification requirement are very
     the involvement of a PE. These facilities               (NRC) at 1–800–424–8802 immediately.
     generally have less complex operations                                                                        similar in scope to those of the PE
                                                             While EPA recognizes that past release                certification: owners and operators that
     and petroleum system configurations,                    history does not necessarily translate
     and smaller oil storage capacities than                                                                       choose to self-certify their Plans must
                                                             into a predictor of future performance,               certify that they are familiar with the
     other types of facilities subject to the                the Agency believes that discharge
     SPCC requirements. Thus, the Agency                                                                           requirements of the SPCC rule; they
                                                             history is a reasonable indicator of a                have visited and examined the facility;
     believes that a responsible owner or
                                                             facility owner or operator’s ability to               the Plan has been prepared in
     operator at these facilities should be
                                                             develop an SPCC Plan for the facility                 accordance with accepted and sound
     able to comply with the SPCC rule
                                                             without the involvement of a PE. Hence,               industry practices and standards;
     provisions without review and
                                                             EPA proposes to use a facility’s                      procedures for required inspections and
     certification of the SPCC Plan by a PE,
                                                             discharge history as a qualification                  testing have been established; the Plan
     and that simplifying the rule will result
                                                             criterion indicating the facility’s ability           is being fully implemented; the facility
     in greater environmental protection by
                                                             to effectively develop and implement its              meets the qualification criteria set forth
     improving compliance.
                                                             SPCC Plan. By establishing a good oil                 under § 112.3(g)(1); the Plan does not
     b. Reportable Discharge History                         spill prevention history, a facility                  include any environmental equivalence
        EPA proposes that a qualified facility               qualifies for the self-certification option           measures as described in § 112.7(a)(2);
     subject to the SPCC requirements must                   offered in this proposal.                             the Plan contains no determinations of
     have no reportable oil discharges as                       The Agency requests comments on                    impracticability under § 112.7(d); and
     described in § 112.1(b) during the ten                  the appropriateness of a reportable                   the Plan and the individual(s)
     years prior to self-certification or since              discharge history criterion for                       responsible for implementing the Plan
     becoming subject to the SPCC                            determining the qualification of a                    have the full approval of management
     requirements, whichever is less.                        facility for the self-certification option,           and the facility has committed the
     Facilities that have been subject to SPCC               whether it is necessary, and whether                  necessary resources to fully implement
     for less than ten years, including new                  there are other indicators of a facility’s            the Plan. The self-certification provision
     facilities, would need to demonstrate no                effective implementation of the oil                   would be optional. Under today’s
     discharges as described in § 112.1(b)                   pollution prevention requirements                     proposal, an owner or operator of a
     only for the period they have been                      under part 112 that should be                         qualified facility could choose to
     subject to SPCC. This criterion is based                considered. In addition, the Agency also              comply with the current requirements
     on a proposal regarding oil-filled                      specifically requests comments on the                 under part 112 if that is more suitable
     electrical equipment submitted by the                   proposed ten-year period for which                    to his/her particular situation.
     Utility Solid Waste Activities Group                    facilities would be required to have had                 Qualified facilities that choose to self-
     (USWAG), as described in the                            no reportable discharges in order to                  certify would not automatically lose
     documents supplementing the                             meet this qualification. The Agency                   eligibility for a self-certified Plan and be
     September 20, 2004 NODA at 69 FR                        requests that any alternative criterion or            required to obtain PE certification in the
     56184. In its proposal, USWAG                           time period suggested include an                      event of a discharge as described in
     recognized that facilities that pose a                  appropriate rationale and supporting                  § 112.1(b). EPA has the authority to
     risk, in terms of oil discharges in                     data to assist the Agency in considering              require SPCC Plan amendments under
     quantities that are harmful (reportable                 them for final action. The Agency is also             § 112.4. Section 112.4(a) requires a
     under 40 CFR part 110), should not be                   aware that events such as natural                     facility that has discharged more than
     granted relief. USWAG specifically                      disasters, acts of war or terrorism,                  1,000 gallons of oil in a single discharge
     proposed a ten-year spill history as a                  sabotage, or other calamities, beyond the             as described in 40 CFR part 110, or that
     potential criterion to be eligible for                  control or planning ability of the facility           has discharged more than 42 gallons of
     relief. In general, NODA commenters                     owner or operator, may cause a                        oil in each of two discharges as
     expressed strong support for the                        reportable oil discharge. The Agency                  described in 40 CFR part 110 in any 12-
     USWAG proposal. As in the case of oil-                  therefore requests comments on how to                 month period, to submit information to


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     73530                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     the EPA Regional Administrator (RA)                     in the SPCC Plan in accordance with                   flexibility in these performance-based
     within 60 days of the date of the                       § 112.3(g)(2).                                        provisions is best suited to SPCC Plans
     discharge. As per § 112.4(d), the RA may                                                                      that are reviewed and certified by a PE.
                                                             b. Environmental Equivalence and                         Today’s proposed amendment would
     require the facility to amend its SPCC
                                                             Impracticability Determinations                       allow qualified facilities to opt out of
     Plan in order to prevent and contain
     discharges, and the RA could require a                     Under § 112.7, facility owners and                 the PE certification, but would not allow
     facility to obtain PE-certification of its              operators have the flexibility to deviate             facilities that take advantage of this
     SPCC Plan. In addition, a discharge of                  from specific rule provisions if the Plan             option to include environmentally
     oil ‘‘in such quantities as may be                      states the reason for nonconformance                  equivalent measures in their SPCC Plans
     harmful’’, as defined in 40 CFR 110.3                   and if equivalent environmental                       pursuant to § 112.7(a)(2). EPA is
     that does not trigger the reporting                     protection is provided by some other                  proposing this limitation on qualified
     requirements of § 112.4(a) must still be                means of spill prevention, control or                 facilities because EPA believes that in
     reported to the National Response                       countermeasure. These                                 general, without the advantage of the
     Center. Criminal action can be taken                    ‘‘environmentally equivalent’’ measures               expertise and knowledge that a PE
     against an owner or operator of a facility              must be described in the SPCC Plan,                   brings to the development of an SPCC
     if discharges are not reported. EPA also                including how the equivalent                          Plan, deviations based on
     receives copies of the NRC reports and                  environmental protection will be                      environmental equivalence may not be
     has the authority under § 112.1(f) to                   achieved based on good engineering                    adequate. However, as discussed below,
     require a facility to prepare and                       practice. Allowance for                               EPA believes that allowing certain
     implement an SPCC Plan or any                           ‘‘environmentally equivalent’’                        deviations may be appropriate for at
     applicable part of a Plan. The time                     deviations is provided in § 112.7(a)(2)               least some owners of qualified facilities,
     frame for this review and amendment                     and are only available for requirements               without employing PE expertise.
     process is described in § 112.4. The                    not related to secondary containment,                 Therefore, EPA is proposing to allow
     facility may choose to appeal the RA’s                  such as fencing and other security                    certain deviations with respect to
     decision to require a Plan amendment                    measures, preventing catastrophic tank                facility security and integrity testing of
     under § 112.4. The RA also has                          failure due to brittle fracture, integrity            bulk storage containers.
     authority to require preparation and                    testing, and liquid level alarms. As part                EPA is also proposing that qualified
     implementation of a Plan or applicable                  of the SPCC Plan, any environmentally                 facilities be precluded from claiming
     part of a Plan under § 112.1(f).                        equivalent measures are also required to              impracticability and using contingency
        The Agency requests comment on the                   be certified by a PE. The PE’s SPCC Plan              planning in lieu of secondary
     appropriateness of using the existing                   certification requirements include                    containment. EPA believes that a PE’s
     authorities under the SPCC regulations                  consideration of industry standards for               knowledge and expertise is needed for
     rather than establishing a separate                     the Plan, which would include                         appropriate contingency planning and
     process that would automatically                        equivalent environmental protection                   other measures that must be put in place
     require a facility to obtain PE review                  measures.                                             in the absence of secondary
     and certification of the facility’s SPCC                   The SPCC rule also provides                        containment. Thus, requiring qualified
     Plan in the event of a reportable                       flexibility for owners/operators who                  facilities that opt out of PE certification
     discharge. The Agency requests that any                 determine that the general secondary                  to adhere to the current set of
     alternative approaches presented                        containment requirements in § 112.7(c)                requirements would maintain the same
     include an appropriate rationale and                    or any of the applicable additional                   standard of environmental protection
     supporting data in order for the Agency                 requirements for secondary containment                provided in the existing rule.
     to be able to consider them for final                   in subparts B and C are impracticable.                   Today’s proposal would not preclude
     action.                                                 Where impracticability is demonstrated,               a qualified facility from choosing
        Under § 112.5 of the SPCC rule, an                   the SPCC rule allows facility owners                  environmentally equivalent measures or
     owner or operator must review and                       and operators the flexibility to instead              from demonstrating impracticability
     amend the SPCC Plan following any                       develop a contingency plan and comply                 with respect to secondary containment
     change in facility design, construction,                with additional requirements as                       requirements, although the qualified
     operation or maintenance that                           described in § 112.7(d). The SPCC Plan                facility would need to comply with the
     materially affects its potential for a                  must explain why containment                          current SPCC requirements (including
     discharge as described in § 112.1(b). A                 measures are not practicable, provide an              the PE certification) in order to utilize
     PE must then certify any and all of these               oil spill contingency plan that follows               the flexibility offered by PE-developed
     technical amendments to the SPCC                        the provisions of 40 CFR part 109                     impracticability determinations and
     Plan, as currently required under                       (Criteria for State, Local and Regional               environmentally equivalent measures.
     § 112.3(d). Under today’s proposal,                     Oil Removal Contingency Plans), and                   In some circumstances, it may be more
     technical amendments to SPCC Plans of                   provide a written commitment of                       cost effective for a PE to prepare an
     qualified facilities would not be                       manpower, equipment, and materials                    SPCC Plan which utilizes
     required to be certified by a PE. Instead,              required to expeditiously control and                 environmentally equivalent measures or
     an owner or operator would be allowed                   remove any quantity of oil discharged                 contingency planning, than for the
     to self-certify technical amendments to                 that may be harmful as described in 40                owner/operator to comply with the
     the Plan under the proposed                             CFR part 110. A PE must certify any                   SPCC provisions as outlined in today’s
     § 112.3(g)(2) provision, and facilities                 impracticability determinations, as well              proposal. Also, facilities with
     with PE-certified Plans which qualify                   as the contingency plan and additional                unconventional operations which
     for self-certification would be allowed                 measures implemented in lieu of                       qualify for this alternative may find that
     to choose to self-certify future technical              containment. Because of the expertise                 the current rule requirement for PE
     amendments rather than hire a                           that a PE has in evaluating whether                   certification offers a more cost-effective
     professional engineer to certify the                    particular measures provide equivalent                method of achieving compliance
     technical amendment. Facilities would                   environmental protection and in                       because it provides additional flexibility
     be required to document the self-                       knowing how to effectively implement                  through performance-based provisions.
     certification of a technical amendment                  such measures, EPA believes that the                  The Agency requests comments on the


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                            73531

     appropriateness of restricting the use of               in the discovery of oil discharges. (Note                The Agency is also proposing to
     impracticability determinations and                     that the security requirements in                     provide flexibility in the area of
     environmentally equivalent measures by                  § 112.7(g) do not apply to production                 integrity testing for qualified facilities.
     those qualified facilities that choose the              facilities.)                                          The Agency continues to believe that
     option of self-certification in order to                   Today’s proposal would allow a                     owners and operators should rely on the
     ensure an adequate level of                             qualified facility to develop a general               appropriate use of industry standards
     environmental protection. Any                           security plan that provides equivalent                for the integrity testing requirements. As
     alternative approach presented must                     environmental protection to the                       EPA stated in its May 2004 letter to the
     include an appropriate rationale and                    requirements in § 112.7(g). The Agency                Petroleum Marketers Association of
     supporting data in order for the Agency                 recognizes that these security provisions             America (available at http://
     to be able to consider it for final action.             can be approached differently by the                  www.epa.gov/oilspill/pdfs/
                                                             variety of facilities that would qualify              PMAA_letter.pdf), the Agency
     c. SPCC Plan Exceptions                                 for self-certification under today’s                  recognizes that in certain site-specific
        Today’s proposal for self-certification              proposal. It should be noted that this is             circumstances, visual inspection may be
     of qualified facilities would restrict the              an option and a qualified facility in                 appropriate and sufficient for
     use of alternative environmentally                      compliance with the current                           compliance with the integrity testing
     equivalent measures for qualified                       requirements under § 112.7(g) would                   requirement. The Agency expects that
     facilities that elect to develop their                  not be required to develop a security                 the selection of particular testing
     SPCC Plan without the services of a PE.                 plan under the proposed § 112.3(g).                   methods to comply with the integrity
     The Agency’s concern is that these                         The security plan would be required                testing requirements in the current rule
     facilities would no longer have a trained               to address how the owner or operator                  and today’s proposal would be based on
     professional, with knowledge to make                    will:                                                 industry inspection standards such as
     site-specific equivalence                                  • Secure all bulk storage containers,              the Steel Tank Institute (STI) SP–001,
     determinations, reviewing and                           piping and oil-filled equipment from                  American Petroleum Institute (API)
     certifying their Plan. However, EPA                     unauthorized access or acts of                        Standard 653 and API Recommended
     recognizes that some of the prescriptive                vandalism which could result in a                     Practice 12–R1. These industry
     provisions in the current regulatory                    discharge of oil;                                     standards address the qualifications of
     requirements may prove difficult for                       • Secure appurtenances (valves and/
                                                                                                                   the tank inspector and the scope/
     some qualified facilities to meet.                      or drains) in the closed position to
                                                                                                                   frequency of the testing/inspections.
        While the Agency still believes that                 prevent the flow of the contents of the
                                                                                                                   Thus, in effect, the Agency is proposing
     generally allowing use of                               container which could result in a
                                                                                                                   to allow owners and operators of
     environmentally equivalent measures in                  discharge of oil;
     self-certified Plans is not appropriate,                   • Secure pump controls in the ‘‘off’’              qualified facilities to consult and rely on
     some degree of flexibility in two areas                 position when not in use and locate                   industry standards or qualified
     may be appropriate for qualified                        facility pump controls to prevent                     container inspectors/testing personnel
     facilities. The Agency believes that it                 unauthorized access;                                  to determine the appropriate
     can allow qualified facilities to comply                   • Secure all loading or unloading                  qualifications for tank inspectors/testing
     with a streamlined set of basic security                transfer connections for facility piping;             personnel and the type/frequency of
     measures and integrity testing                          and                                                   integrity testing required for a particular
     requirements. The flexibility in these                     • Address whether security lighting is             container size and configuration. The
     proposed exceptions would be                            appropriate to both ensuring the                      Agency is proposing to allow qualified
     analogous to the flexibility provided                   discovery of oil discharges, and deter                facilities to make this determination in
     under § 112.7(a)(2), which allows for                   vandalism.                                            accordance with industry standards
     deviations from § 112.7(g) (security) and                  This security plan would be required               without the need to develop a PE-
     § 112.8(c)(6) (integrity testing) that                  to be documented in the qualified                     approved environmentally equivalent
     would not be available for these                        facility’s SPCC Plan, and would include               deviation, as is currently required under
     facilities under today’s proposal.                      a discussion of how the security plan                 § 112.7(a)(2). The Agency believes that
        EPA recognizes that there is no one                  will be implemented and the required                  allowing this flexibility for qualified
     single approach to ensure proper facility               training/inspections/maintenance for                  facilities would increase compliance
     security. For example, the security                     security related equipment and                        and thus environmental protection.
     requirements of fencing and lighting                    activities. The Agency recognizes the                    The U.S. Small Business
     may not always be appropriate for sites                 unique nature of many of the facilities               Administration (SBA) Office of
     such as a national, state or local park                 that would qualify for Plan self-                     Advocacy has suggested an additional
     subject to SPCC, where the site layout                  certification, and as such, some                      alternative approach for allowing
     may be too extensive to fence, and                      flexibility is appropriate so these                   flexibility for integrity testing of small
     where perhaps the lighting of a solitary                facilities can achieve compliance with                shop-built tanks that is based on the
     field tank would invite, rather than                    the security provisions of the current                current SP001 standard. The current
     deter, would-be intruders. Qualified                    SPCC rule. The application of the SPCC                SP001 standard allows periodic visual
     facilities, in lieu of the requirements                 security measures is often determined                 inspections for shop-fabricated
     under § 112.7(g) of this part, would be                 by the facility’s geographical/spatial                aboveground storage tanks with a total
     allowed to prepare a security plan that                 factors and there is no ‘‘one-size-fits-all’’         capacity of 5,000 gallons, and for which
     describes how the facility controls                     answer to this serious compliance                     there is spill control and a continuous
     access to the oil handling, processing                  requirement. For example, facilities                  release detection method (i.e., Category
     and storage areas; secures master flow                  such as farms or national parks may                   1 tanks). SBA Office of Advocacy has
     and drain valves; prevents unauthorized                 have unique characteristics that make                 suggested that EPA allow periodic
     access to starter controls on oil pumps;                compliance with the current security                  visual inspections for shop-fabricated
     secures out-of-service and loading/                     measures, such as potentially fencing                 aboveground storage tanks at qualified
     unloading connections of oil pipelines;                 the entire facility footprint,                        facilities, in accordance with this SP001
     prevents acts of vandalism; and assists                 inappropriate.                                        standard, but broaden the applicability


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     73532                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     to include shop-fabricated aboveground                  present at most of these qualified                    during the interim period, including
     storage tanks that have an oil capacity                 facilities. In the absence of an                      those that could potentially take
     of between 5,000 and 10,000 gallons. In                 environmental equivalency provision                   advantage of today’s qualified facilities
     all other respects, the SP001 standard                  that would allow an alternative integrity             proposal. A suspension of requirements
     would apply. In the SBA’s view, due to                  testing method for qualified facilities,              for qualified facilities would provide
     the presence of spill control and a                     the owner or operator would be required               relief for the affected universe until EPA
     continuous release detection method (in                 to perform visual inspections plus non-               takes further action.
     accordance with the SP001 standard),                    destructive testing on all classes of                   Both of these options would allow
     there appears to be little likelihood for               containers, regardless of size and                    EPA more time to decide how to
     a discharge into navigable waters. The                  configuration. Qualified facilities would             regulate qualified facilities without
     SBA Office of Advocacy also believes                    have to bear the cost and burden of                   delaying compliance for the entire
     this additional option would make the                   conducting non-destructive testing that               universe of SPCC-regulated facilities. In
     visual inspection option available to all,              may not be necessary under industry                   contrast, the proposed option would set
     and not a subset of, qualified facilities               standards. The Agency continues to                    forth explicit requirements for qualified
     and it would benefit those qualified                    strongly recommend that facilities,                   facilities that reduce compliance costs
     facilities having one tank above 5,000                  qualified for self-certification or                   within the current compliance date
     gallons.                                                otherwise, utilize industry standards                 schedule. Because these options would
        EPA is not proposing the SBA                         that are appropriate to their particular              only postpone the rule’s requirements
     additional approach for several reasons.                tank configurations in developing and                 for qualified facilities and because the
     First the SBA approach would deviate                    conducting tank inspection and testing                Agency believes that the modifications
     from the industry standards noted                       programs and when determining                         proposed today address the major
     above. Second, the Agency is unaware                    inspector/testing personnel                           concerns raised by facilities that store
     of a technical basis to justify this                    qualifications.                                       lower volumes of oil, EPA believes it
     deviation. EPA must justify divergence                     The Agency requests comments on                    appropriate to go forward with today’s
     from accepted industry standards under                  whether the proposed requirements for                 proposal.
     the National Technology Transfer and                    security and integrity testing for
                                                                                                                   b. Multi-Tiered Structure
     Advancement Act (NTTAA) (see section                    qualified facilities provide appropriate
     VII (I) for a description of NTTAA).                    flexibility, while maintaining                           A multi-tiered structure option was
     Third, industry standards are                           environmental protection. Any                         developed in response to comments
     periodically updated and revised to                     alternative approach presented must                   EPA received following publication of
     account for changes in technology and                   include an appropriate rationale and                  the NODA for facilities that handle oil
     to remain consistent with good                          supporting data in order for the Agency               below a certain threshold amount (69
     engineering practice while this                         to be able to consider it for final action.           FR 56182, September 20, 2004) and is
     approach would need to be revised                                                                             based on a previous analysis prepared
                                                             3. Alternative Options Considered                     for the SBA Office of Advocacy (Jack
     through rulemaking. Finally, EPA
     believes that by allowing for a deviation                  EPA considered other options for this              Faucett Associates, 2004) (hereafter
     from existing industry standards,                       proposal. These options included (1)                  ‘‘SBA proposal’’). This revised
     compliance would become more                            providing an indefinite extension of                  regulatory structure would not only
     complex as facilities try to understand                 deadlines or a suspension of all SPCC                 relax requirements for PE certification,
     the circumstances under which this                      requirements; and (2) a multi-tiered                  but also requirements for preparing an
     additional approach can be employed.                    structure of requirements based on a                  SPCC Plan itself, although under this
     The Agency welcomes comment on this                     facility’s total regulated storage based on           approach, the facility would still be
     additional approach as well as on the                   the SBA proposal described in the                     responsible for complying with the
     proposed approach for integrity testing                 Certain Facilities NODA published last                substantive requirements of the SPCC
     for qualified facilities. In addition, once             year. The Agency also considered                      rule. It includes a tiered system based
     the modifications proposed today are                    requiring qualified facilities to make a              on the total storage capacity of a facility,
     promulgated, the Agency is willing to                   one-time notification to EPA they have                as follows:
     continue to work with industry tank                     been in operation or subject to the SPCC                 • Tier I would include facilities that
     inspection standard setting                             requirements for a period less than ten               handle between 1,321 and 5,000 gallons
     organizations to update applicable                      years from the time of Plan certification,            of oil (total storage capacity). These
     industry standards. Commenters who                      and therefore could not show a ten-year               facilities would not need a written SPCC
     have information on the scope and                       clean spill history as a qualifier. All of            Plan (and therefore no PE certification
     criteria associated with the industry                   these options would apply to a defined                would be needed), but would have to
     visual inspection standards should                      set of ‘‘qualified facilities’’.                      adhere to all other SPCC requirements.
     provide it to the standards setting                                                                              • Tier II would include facilities
                                                             a. Extension/Suspension Options                       handling between 5,001 and 10,000
     organizations and their national experts
     for consideration.                                         Two additional options were                        gallons of oil (total storage capacity).
        At this time, EPA is aware that a                    considered: An indefinite compliance                  These facilities would be required to
     number of industry standards are                        date extension and a suspension of all                have a written SPCC Plan, but the Plan
     changing. Nevertheless, the Agency                      requirements. Both options would apply                would not need to be certified by a PE,
     believes that it may be appropriate to                  to a defined universe of ‘‘qualified’’                and a PE site visit would not be
     allow the flexibility of alternative                    SPCC-regulated facilities. An indefinite              required. Standardized plans could be
     integrity testing methods for these                     extension would provide an                            adopted by a facility conforming to
     qualified facilities to be consistent with              undetermined future date for                          standard design and operating
     relevant industry standards. For                        compliance with the rule. As in past                  procedures, without requiring PE
     example, visual inspections may be                      extensions, all facilities that should                certification.
     appropriate for the lower volume shop-                  have had a Plan as of August 16, 2002                    • Tier III would include the
     built containers in certain                             would be required to be in compliance                 remaining SPCC-regulated facilities
     configurations that are likely to be                    with the pre-2002 SPCC requirements                   (total storage capacity greater than


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                            73533

     10,000 gallons). These facilities would                 approach, as well as on the proposed                  additional burden of a notification
     be required to have a written SPCC Plan                 approach, the practical application of                requirement was not considered
     certified by a PE, as currently required                the proposal and the rationale for its                necessary.
     by the 2002 revised SPCC rule.                          adoption.                                               The Agency welcomes comments on
        SBA also suggested that EPA                                                                                these or other alternatives that could
     promulgate an interim final rule that                   c. One-Time Notification                              serve to reduce the burden to smaller
     excludes small facilities with storage of                  The Agency recognizes that some                    oil-handling facilities in particular,
     less than 10,000 gallons (the first two                 facilities otherwise qualifying for                   while at the same time maintaining
     tiers of their three-tier approach) from                owner/operator self-certification will                appropriate levels of environmental
     SPCC Plan requirements, pending                         have been in existence for fewer than                 protection by preventing discharges of
     completion of the full notice and                       ten years and will consequently be                    oil. Any alternative approach presented
     comment rulemaking for small facilities                 unable to demonstrate ten years without               must include an appropriate rationale
     to develop the aforementioned tiered                    a discharge as described in § 112.1(b).               and supporting data in order for the
     requirements. In order to provide                       Some of these facilities will have come               Agency to be able to consider it for final
     environmental protection in the interim                 into existence after August 16, 2002,                 action.
     period, SBA recommended that EPA                        and will not have been subject to SPCC
                                                             regulation until August 18, 2006; some                B. Qualified Oil-Filled Operational
     require: (1) Regular visual inspections of
                                                             will be new facilities beginning                      Equipment
     containers, (2) replacement or
     retirement of leaking tanks, and (3)                    operation after that date. EPA agrees                    EPA proposes to amend the Oil
     compliance with the part 109                            with the USWAG comments that a                        Pollution Prevention regulation (40 CFR
     contingency plan requirements or their                  compliant discharge history of ten years              part 112) to provide a definition of oil-
     equivalent. In this manner (according to                or more provides a higher degree of                   filled operational equipment and an
     SBA), the EPA could address the reality                 assurance of continuing compliance                    optional alternative to the general
     of the extremely low SPCC compliance                    than a history of ten years or less. This             secondary containment requirements for
     rate among small facilities, and would                  is particularly true when comparing ten-              oil-filled operational equipment that
     work toward creating a rule that small                  year compliant facilities to otherwise                meets the qualifying criterion (hereafter
     facilities would be likely to comply                    qualified facilities which began                      referred to as ‘‘qualified oil-filled
     with. SBA stated that such a move                       operations after August 16, 2002, and                 operational equipment’’). The proposal
     would enhance, rather than detract                      whose owners or operators, to date,                   would allow owners and operators of
     from, environmental protection.                         have not been subject to the                          facilities with qualified oil-filled
        This approach would provide                          requirements of the SPCC program, as                  operational equipment to have the
     different levels of regulatory relief based             well as start-up facilities without any               alternative of preparing an oil spill
     on total oil storage capacity alone,                    operating history. EPA considered                     contingency plan and a written
     basing degree of risk on the surrogate                  whether owners or operators of newer                  commitment of manpower, equipment
     measure facility size. Many commenters                  facilities that do not have ten years of              and materials to expeditiously control
     on the NODA supported this approach,                    compliance and operation without a                    and remove any oil discharged that may
     which would reduce compliance costs                     discharge should be required to provide               be harmful, without having to make an
     by eliminating the PE certification                     a one-time notification to the Agency.                individual impracticability
     requirement for facilities under 10,000                 This notification would be submitted to               determination as required in § 112.7(d).
     gallons. However, EPA believes that                     the Administrator within 30 days of                   The owner or operator would also be
     such an approach poses significant                      self-certifying a facility’s SPCC Plan and            required to establish and document an
     implementation problems both for the                    would include the following                           inspection or monitoring program for
     regulated community and the regulators.                 information: (1) Name of the facility                 this qualified oil-filled operational
     In particular, the Agency believes that                 owner/operator; (2) mailing address of                equipment to detect equipment failure
     without the owner/operator developing                   the facility owner/operator; (3) type of              and/or a discharge, in lieu of providing
     a Plan or documentation on how the                      business conducted at the facility that is            secondary containment.
     facility will comply or expects to                      subject to the requirements of this part;                EPA proposes to add § 112.7(k) to
     comply with the SPCC requirements, it                   (4) above-ground capacity of the facility;            define the SPCC eligibility criterion that
     will be challenging for the facility to                 (5) location of the facility by street                qualified oil-filled operational
     both meet the substantive requirements                  address or, if there is no street address,            equipment must meet in order to be
     (for example, spill notification, response              by longitude and latitude; and (6) year               considered qualified oil-filled
     and preparedness planning, equipment                    the facility began operations. These                  operational equipment. Eligibility of a
     maintenance, inspection and training,                   notices could be provided by either                   facility with oil-filled operational
     secondary containment), as well as                      regular or electronic mail. The Agency                equipment would be determined by
     provide documentation to the regulators                 would have the opportunity to provide                 considering the reportable discharge
     that the facility is in compliance.                     some basic SPCC outreach and                          history from any oil-filled operational
     Additionally, EPA inspectors                            educational support to these owners and               equipment. The qualified oil-filled
     conducting site visits would have no                    operators who, while otherwise                        operational equipment criterion
     written Plan or documentation to assess                 demonstrating the prerequisites for self-             specifically requires that the facility had
     the facility’s effectiveness in                         certification, are unable to demonstrate              no discharges as described in § 112.1(b)
     implementing its spill prevention                       ten years without a discharge as                      from any oil-filled operational
     strategy.                                               described in § 112.1(b). This one-time                equipment in the ten years prior to the
        Although EPA received general                        notification requirement, if adopted,                 SPCC Plan certification date, or since
     comments supporting this option on a                    would modify today’s proposed                         becoming subject to 40 CFR part 112 if
     conceptual level, neither the                           qualified facilities option by increasing             the facility has been in operation for less
     information presented in the NODA nor                   its burden for some facilities. EPA                   than ten years.
     the comments addressed the practical                    decided not to pursue this option                        This proposed action would provide
     application of this alternative. The                    because it does not differ substantively              an alternative means of SPCC
     Agency welcomes comments on this                        from the proposed action and the                      compliance for this equipment;


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     73534                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     therefore, an owner/operator could                      submitted in response to this NODA and                equipment. In order to determine the
     choose to follow the current SPCC                       presents today’s proposal in accordance               storage capacity of an individual piece
     requirements to provide secondary                       with our intention to consider                        of oil-filled operational equipment, the
     containment for each piece of qualified                 alternative containment options for                   owner/operator would consider the total
     oil-filled operational equipment in                     electrical and operational equipment.                 storage capacity of the piece of
     accordance with § 112.7(c) if desired.                     Today’s proposal defines oil-filled                equipment (i.e., add together the
     For example, oil-filled operational                     operational equipment as ‘‘equipment                  capacity of multiple compartments or
     equipment at electrical substations is                  which includes an oil storage container               reservoirs of oil storage). The owner or
     often surrounded by a gravel bed, which                 (or multiple containers) in which the oil             operator must include the storage
     serves as a passive fire quench system                  is present solely to support the function             capacity of oil-filled operational
     and support for the facility grounding                  of the apparatus or the device. Oil-filled            equipment in order to determine
     network and can provide a restriction to                operational equipment is not considered               applicability of the SPCC regulation to
     movement of any oil that may be                         a bulk storage container, and does not                the facility.
     released. Gravel beds, if designed to                   include oil-filled manufacturing                         As proposed today, oil-filled
     prevent a discharge as described in                     equipment (flow-through process).’’                   manufacturing equipment (which
     § 112.1(b) (i.e., drainage systems that do              Examples of oil-filled operational                    involves a flow-through process) would
     not serve as a conduit to surface waters)               equipment include, but are not limited                not qualify for this alternative. Under
     may meet the general secondary                          to, hydraulic systems, lubricating                    the current rule, oil-filled
     containment requirements of § 112.7(c).                 systems (e.g., those for pumps,                       manufacturing equipment (which is a
     EPA further notes that facilities with oil-             compressors and other rotating                        subset of oil-filled equipment) is not
     filled operational equipment located                    equipment, including pumpjack                         defined as a bulk storage container. Oil-
     within buildings with limited drainage,                 lubrication systems), gear boxes,                     filled manufacturing equipment
     which prevents a discharge as described                 machining coolant systems, heat                       includes, for example, process vessels,
     in § 112.1(b), may already meet the                     transfer systems, transformers, circuit               conveyances such as piping associated
     requirements for general secondary                      breakers, electrical switches, and other              with a process, and equipment used in
     containment of § 112.7(c). If so, a                     systems containing oil to enable the                  the alteration, processing or refining of
     contingency plan for this equipment is                  operation of the devices.                             crude oil and other non-petroleum oils,
     not necessary. Ultimately, this would be                   Oil-filled operational equipment                   including animal fats and vegetable oils
     a decision by the owner and/or operator.                differs from bulk storage containers in               Oil-filled manufacturing equipment is
                                                             several ways. Oil-filled operational                  inherently more complicated than oil-
     1. Proposed Oil-Filled Operational                      equipment typically has minimal oil                   filled operational equipment because it
     Equipment Definition                                    throughput because such equipment                     typically involves a flow-through
        In July 2002, EPA clarified that oil-                does not require frequent transfers of                process and is commonly
     filled equipment (i.e., oil-filled                      oil. Further, the oil contained in oil-               interconnected through piping. For
     electrical, operating, and manufacturing                filled operational equipment, such as                 example, oil-filled manufacturing
     equipment) are not bulk storage                         cooling or lubricating oil, is intrinsic to           equipment receives a continuous source
     containers and therefore are not subject                the operation of the device and                       of oil, in contrast to the static capacity
     to the bulk storage container provisions                facilitates the function of the                       of other, non-flow-through oil-filled
     in § 112.8(c), including specifically                   equipment. A leak of oil from some oil-               equipment.
     sized secondary containment for bulk                    filled operational equipment can be                      Today’s proposal would not change
     storage containers and integrity testing.               detected by low-level alarms and remote               any requirements for oil-filled
     However, as EPA stated in the preamble                  monitoring of the performance of the                  manufacturing equipment. Oil-filled
     to the July 2002 amendments, oil-filled                 equipment. For example, the loss of oil               manufacturing equipment remains
     equipment is subject to general                         from electrical equipment will result in              subject to the general SPCC
     secondary containment requirements                      the equipment ceasing to operate, which               requirements under § 112.7, including a
     described in § 112.7(c), which can be                   will result in a power outage. Utilities              demonstration of impracticability under
     provided by various means including                     have strong economic incentives to                    § 112.7(d) if the SPCC Plan does not
     drainage systems, spill diversion ponds,                prevent power outages, to discover and                provide for secondary containment as
     etc. EPA believes these measures                        respond to an outage, and to correct the              required by § 112.7(c). The containers
     provide for safety and also meet the                    conditions that produced the outage as                associated with storage of raw products,
     needs of section 311(j)(1)(C) of the                    quickly as possible. In addition, oil-                or the finished oil products are bulk
     CWA.                                                    filled operational equipment is often                 storage containers and are not
        Though there are times when general                  subject to routine maintenance and                    considered oil-filled manufacturing
     secondary containment is practicable for                inspections to ensure proper operation.               equipment or oil-filled operational
     oil-filled operational equipment, the                   Finally, oil-filled operational equipment             equipment. Additionally, piping
     Agency agreed to continue to evaluate                   is designed, constructed, and                         systems not associated with the
     whether the general secondary                           maintained according to specifications                alteration, processing or refining of
     containment requirements found in                       for its particular operation and                      crude oil and other non-petroleum oils,
     § 112.7(c) should be modified for small                 construction materials are corrosion-                 including animal fats and vegetable oils
     electrical and other types of equipment                 resistant.                                            are not considered oil-filled
     which use oil for operating purposes.                      However, the oil storage capacity of               manufacturing equipment. EPA expects
     On September 20, 2004, EPA published                    oil-filled operational equipment still                the owner/operator to delineate bulk
     a NODA which made available and                         counts towards the total oil storage                  storage containers from the oil-filled
     solicited comments on submissions to                    capacity of the facility. The SPCC                    manufacturing equipment in the facility
     EPA suggesting that alternate regulatory                regulation defines storage capacity of a              SPCC Plan (e.g., on the facility diagram
     requirements for facilities with oil-filled             container as the shell capacity of the                and in discussion of compliance with
     and process equipment would be                          container. This definition applies to all             inspection requirements of the rule).
     appropriate (69 FR 56184). EPA has                      oil storage containers including bulk                 Additionally, while oil-filled
     reviewed the public comments and data                   storage containers and all oil-filled                 manufacturing equipment is not a bulk


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                           73535

     storage container and is therefore not                  discharge history criterion to identify a             to inherent design and safety
     subject to the frequent visual inspection               facility’s ability to effectively implement           considerations, as well as site
     requirement for bulk storage containers                 its SPCC Plan and prevent discharges in               configuration. The oil associated with
     under § 112.8(c)(6), EPA believes that it               quantities that may be harmful. In                    oil-filled operational equipment remains
     is good engineering practice to have                    establishing a good oil spill prevention              inside the equipment and transfers do
     some form of visual inspection or                       history, a facility then qualifies for the            not occur regularly; for oil-filled
     monitoring for oil-filled manufacturing                 oil spill contingency plan option offered             electrical equipment (e.g., transformers)
     equipment in order to prevent                           in this proposal. Because the Agency is               transfers may occur infrequently, if at
     discharges as described in § 112.1(b).                  proposing to extend this relief to all oil-           all. Operational equipment is designed,
     Furthermore, it is a challenge to comply                filled operational equipment, regardless              constructed, and maintained according
     with several of the SPCC provisions (for                of the oil storage capacity of the                    to specifications for its particular
     example, requirements for security                      equipment, this criterion is critical in              operation and construction materials are
     under § 112.7(g) and for                                establishing an appropriate balance                   corrosion-resistant. The complexity of
     countermeasures for discharge                           between environmental protection and                  the equipment and the nature of the use
     discovery under § 112.7(a)(3)(iv))                      burden relief by identifying those                    of this equipment may not lend itself to
     without some form of inspection or                      facilities which have demonstrated good               traditional bulk storage containment
     monitoring program.                                     spill prevention practices in the past.               methods and thus flexibility is
                                                                The Agency requests comments on                    appropriate in this area and may
     2. Eligibility Criteria—Reportable
                                                             the appropriateness of a reportable                   improve compliance with oil pollution
     Discharge History
                                                             discharge history criterion for                       prevention measures. The proposed
        Under today’s proposal, the                          determining the qualifications of a                   amendments to § 112.7 would give a
     alternative to secondary containment for                facility with oil-filled operational                  facility with qualified oil-filled
     qualified oil-filled operational                        equipment for this alternative, whether               operational equipment the option of
     equipment would not be available to                     it is necessary, and whether there are                implementing an oil spill contingency
     facilities that have had a reportable                   other measures of a facility’s effective              plan and written commitment of
     discharge from any oil-filled operational               implementation of the oil pollution                   manpower, equipment, and materials
     equipment in the ten years prior to the                 prevention requirements for oil-filled                required to expeditiously control and
     SPCC Plan certification date, or since                  operational equipment under 40 CFR                    remove any quantity of oil discharged
     becoming subject to 40 CFR part 112 if                  part 112 that should be considered. In                that may be harmful in lieu of secondary
     the facility has been in operation for less             addition, the Agency also specifically                containment for this equipment,
     than ten years. This criterion is based on              requests comments on the proposed ten-                without having to make an
     a proposal submitted by USWAG, as                       year period by which facilities can meet              impracticability determination for each
     described in the documents                              the discharge history criterion. Any                  piece of equipment. It should be noted
     supplementing the September 20, 2004                    alternative time periods suggested must               that the use of a contingency plan does
     NODA at 69 FR 56184. In its proposal,                                                                         not relieve the owner/operator of
                                                             include an appropriate rationale and
     USWAG recognized that facilities that                                                                         liability associated with an oil discharge
                                                             supporting data in order for the Agency
     pose a risk, in the form of discharges of                                                                     to navigable waters or adjoining
                                                             to be able to consider them for final
     oil in quantities that are harmful                                                                            shorelines that violates the provisions of
                                                             action. The Agency is also aware that
     (reportable under 40 CFR part 110),                                                                           40 CFR part 110.
                                                             events such as natural disasters, acts of
     should not be granted regulatory relief.                                                                         In the preamble to the 2002
                                                             war or terrorism, sabotage, or other
     In general, NODA commenters                                                                                   amendments, EPA discusses how any
                                                             calamities, beyond the control or
     expressed strong support for the                                                                              facility which makes a determination of
                                                             planning ability of the facility owner or
     USWAG proposal.                                                                                               impracticability and has submitted a
        40 CFR 110.3 defines a discharge of                  operator, may cause a reportable oil
                                                                                                                   Facility Response Plan (FRP) under
     oil ‘‘in such quantities that may be                    discharge. The Agency therefore
                                                                                                                   § 112.20 is exempt from the contingency
     harmful to the public health, welfare, or               requests comments on how to account
                                                                                                                   planning requirement because such a
     the environment of the United States as                 for such occurrences in the discharge
                                                                                                                   response plan is more comprehensive
     a discharge of oil that violates                        history criterion.
                                                                                                                   than a contingency plan following 40
     applicable water quality standards; a                   3. Proposed Requirements for Qualified                CFR part 109. The Agency believes that
     discharge of oil that causes a film or                  Oil-Filled Operational Equipment in                   this should also apply to a facility with
     sheen upon the surface of the water or                  Lieu of Secondary Containment                         qualified oil-filled operational
     adjoining shorelines; or a discharge of                                                                       equipment which would choose to
     oil that causes a sludge or emulsion to                 a. Contingency Plans and a Written
                                                             Commitment of Manpower, Equipment                     utilize contingency planning in lieu of
     be deposited beneath the surface of the                                                                       secondary containment in accordance
     water or adjoining shorelines. The                      and Materials
                                                                                                                   with today’s proposal. If such a facility
     Agency refers to such discharges in                        The regulated community,                           has already developed an FRP to
     § 112.1(b) of the rule. Any person in                   particularly electrical facilities,                   comply with § 112.20, then it would not
     charge of a facility must report any such               identified secondary containment for                  need to also develop a contingency plan
     discharge of oil from the facility to the               oil-filled operational equipment as one               in accordance with 40 CFR part 109 for
     National Response Center (NRC) at 1–                    of its major cost concerns. This                      the qualified oil-filled operational
     800–424–8802 immediately. While EPA                     sentiment was echoed in the comments                  equipment.
     recognizes that past discharge history                  submitted in response to the NODAs.                      Since, by definition, oil-filled
     does not necessarily predict future                     With this proposal, the Agency is                     operational equipment is not considered
     performance, the Agency believes that                   responding to those concerns by                       a bulk storage container, the facility
     discharge history can be used as a                      providing targeted relief without                     owner or operator is not required to
     surrogate measure for a facility’s ability              compromising on environmental                         comply with the bulk storage
     to appropriately manage its oil. Hence,                 protection. EPA believes that secondary               requirements under § 112.8(c) or to
     as with the ‘‘qualified facilities’’                    containment may be often impracticable                conduct both periodic integrity testing
     proposal, EPA proposes to use this                      for oil-filled operational equipment due              of the containers and periodic integrity


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     73536                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     and leak testing of the valves and piping               addition, a discharge of oil under 40                 without some form of inspection or
     as described under § 112.7(d). However,                 CFR part 110 that does not trigger the                monitoring program.
     EPA believes that inspections or                        reporting requirements of § 112.4(a)                     A facility owner/operator must be
     monitoring are important when there is                  must still be reported to the National                able to quickly detect a discharge from
     no secondary containment in place.                      Response Center. EPA also receives                    qualified oil-filled operational
     Therefore, EPA is proposing to require                  copies of the NRC reports and has the                 equipment in order for a contingency
     facilities with qualified oil-filled                    authority under § 112.1(f) to require a               plan to be effective. Oil-filled
     operational equipment choosing the                      facility to prepare and implement an                  operational equipment may be
     proposed alternative to secondary                       SPCC Plan or any applicable part of a                 frequently monitored by employees
     containment to develop and implement                    Plan. Thus, the RA may require a Plan,                tending to the operation, and in such a
     an inspection or monitoring program, as                 partial Plan, or amendments to the Plan               case, discharges of oil would be noticed
     further discussed in section B.3.b. of                  to achieve full compliance with the rule,             quickly. For many types of operational
     this section of the preamble. Since this                as deemed appropriate to prevent                      equipment, particularly oil-filled
     proposal for qualified oil-filled                       further discharges in quantities that may             electrical equipment, releases of oil
     operational equipment would provide                     be harmful.                                           rapidly decrease the functionality of the
     an optional method of SPCC                                                                                    equipment—for oil-filled electrical
                                                             b. Inspections or Monitoring Program                  equipment, loss of dielectric fluid leads
     compliance, a facility with such
     equipment could choose to follow the                       Facility owners or operators that wish             to equipment failure and an interruption
     current SPCC requirements and provide                   to take advantage of this proposed                    of electric power transmission. The
     general secondary containment in                        alternative would be required to                      need for equipment reliability assures
     accordance with § 112.7(c) for this                     develop an appropriate set of                         prompt detection of releases of oil,
     equipment if desired. Ultimately, this                  procedures for inspections or a                       enhancing the probability of a prompt
     would be a decision of the owner and/                   monitoring program for qualified oil-                 response action. Therefore, in lieu of
     or operator.                                            filled operational equipment. For                     secondary containment, today’s
                                                             facilities that rely on contingency                   proposal for qualified oil-filled
        Facilities with qualified oil-filled
                                                             planning in lieu of secondary                         operational equipment includes the
     operational equipment that choose the
                                                             containment for qualified oil-filled                  requirement for a facility owner/
     proposed alternative to secondary
                                                             operational equipment, discharge                      operator to establish and document an
     containment and that subsequently                                                                             inspection or monitoring program, in
     experience a discharge would not                        discovery by inspection or monitoring is
                                                             of paramount importance for effective                 addition to the preparation of a
     automatically lose eligibility for today’s                                                                    contingency plan, and a written
     proposed relief. Owners/operators of                    and timely implementation of the
                                                             contingency plan. An inspection or a                  commitment of manpower, equipment,
     facilities which discharge oil in                                                                             and materials to expeditiously control
     quantities that may be harmful from oil-                monitoring program would ensure that
                                                                                                                   and remove oil discharged.
     filled operational equipment should re-                 facilities are alerted quickly of
                                                                                                                      The Agency requests comments on
     evaluate the effectiveness of the SPCC                  equipment failures and/or discharges. A
                                                                                                                   the appropriateness of this requirement
     Plan (specifically the contingency plan,                written description of the inspection or              as a qualification for this alternative,
     written commitment of resources and                     monitoring program would be required                  and whether there are other measures
     inspections/monitoring alternative                      to be included in the SPCC Plan. Under                that a facility could take to ensure that
     discussed in today’s proposal) and                      the existing requirement in § 112.7(e),               a contingency plan is activated in a
     determine the need for secondary                        the owner or operator would be required               timely manner upon equipment failure
     containment measures in lieu of                         to keep a record of inspections and tests,            or discharge. The Agency also requests
     contingency planning. Additionally, the                 signed by the appropriate supervisor or               comments on whether there are other
     Regional Administrator (RA) may                         inspector, for a period of three years.               requirements that should be added for
     determine that a facility is no longer                  Records of inspections and tests kept                 facilities with oil-filled operational
     eligible to have a contingency plan in                  under usual and customary business                    equipment to be able to establish and
     lieu of secondary containment without                   practices suffice (e.g., records of                   document an inspection or monitoring
     making an impracticability                              inspections and tests required by this                program, use a contingency plan, and
     determination, and such facilities may                  rule may be maintained in electronic or               provide a written commitment of
     be required to amend their Plans to                     any other format which is readily                     manpower, equipment and materials in
     provide secondary containment for their                 accessible to the facility and to EPA                 lieu of secondary containment for
     oil-filled operational equipment. The                   personnel).                                           qualified oil-filled operational
     RA has the authority to require SPCC                       While oil-filled operational                       equipment. Any alternative approach
     Plan amendments under § 112.4.                          equipment is not a bulk storage                       presented must include an appropriate
     Section 112.4(a) requires a facility that               container and is therefore not subject to             rationale and supporting data in order
     has discharged more than 1,000 gallons                  the frequent visual inspection                        for the Agency to be able to consider it
     of oil in a single discharge as described               requirement for bulk storage containers               for final action.
     in 40 CFR part 110, or that discharged                  under § 112.8(c)(6), EPA believes that it
     more than 42 gallons of oil in each of                  is good engineering practice to have                  Alternative Options Considered
     two discharges as described in 40 CFR                   some form of visual inspection or                       EPA considered alternative
     part 110 in any 12-month period to                      monitoring for oil-filled operational                 approaches to address streamlined
     submit information to the RA within 60                  equipment in order to prevent                         requirements for small oil-filled
     days of the date of the discharge. As per               discharges as described in § 112.1(b).                operational equipment. One option was
     § 112.4(d), the RA has the authority to                 Additionally, it is a challenge to comply             similar to the qualified facilities
     require the facility to amend its SPCC                  with several of the SPCC provisions (for              proposal, in which eligibility of a
     Plan in order to prevent and contain                    example, requirements for security                    facility with oil-filled operational
     discharges; e.g., the RA may require a                  under § 112.7(g) and for                              equipment would be determined by
     facility to install secondary containment               countermeasures for discharge                         considering capacity thresholds and
     for oil-filled operational equipment. In                discovery under § 112.7(a)(3)(iv))                    reportable discharge history from any


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                           73537

     oil-filled operational equipment.                       Agency has no information describing                  an SPCC Plan. Such an approach would
     Another option would call for a tiered                  the types of oil-filled operational                   have exempted a significant portion of
     set of requirements for electrical and                  equipment, capacities and distribution                the regulated universe with oil-filled
     other oil-filled operational equipment.                 for other industries. Additionally, we                operational equipment from the
     EPA also considered options similar to                  have limited specific information on the              development of an SPCC Plan entirely
     those presented for the qualified                       various sizes of oil-filled electrical                and instead would only need to develop
     facilities proposal: (1) providing an                   equipment to assist in establishing a                 a contingency plan and a written
     indefinite extension of the Plan revision               threshold for an individual piece of                  commitment of manpower, equipment
     and implementation dates for certain                    equipment.                                            and materials in the event of a
     types of oil-filled operational                            The Agency seeks comments on                       discharge. Tier III would require that all
     equipment; and (2) suspending all SPCC                  whether eligibility for qualified oil-                other oil-filled operational equipment
     requirements for certain types of oil-                  filled operational equipment status                   with capacities greater than 20,000
     filled operational equipment.                           should be based on a specific level of                gallons for an individual piece of
                                                             aggregate oil-filled operational                      equipment be required to comply with
     a. Capacity Threshold Qualifier                         equipment storage capacity at a given                 the current SPCC rule.
        The Agency considered an alternative                 facility. The Agency seeks comments on                  Although the Agency agrees that some
     approach based on various levels of                     whether a threshold criterion achieves                regulatory modifications are appropriate
     aggregate oil storage capacity at a                     an appropriate balance of facility                    for facilities containing oil-filled
     facility for determining which facilities               burden and environmental protection                   operational equipment, there is still a
     would be eligible for reduced burden as                 for oil-filled operational equipment.                 reasonable potential for discharge from
     qualified oil-filled operational                        Any available data specific to either the             this equipment and coverage by some
     equipment. EPA considered limiting the                  capacity, location, or size distribution of           type of SPCC Plan is warranted. The
     proposed option by including two                        oil-filled operational equipment within               Agency believes this is true even for
     alternative storage capacity thresholds                 a facility or within a specific industry              facilities composed entirely of oil-filled
     from which the owner/operator may                       sector would be useful in Agency                      operational equipment. EPA also has
     determine the equipment or facility’s                   deliberations for final rulemaking.                   concerns about the suggestion to allow
     eligibility: (1) The storage capacity of an             Comments specific to establishing a                   facility owners and operators to define
     individual piece of oil-filled operational              threshold criterion for oil-filled                    each piece of oil-filled equipment as a
     equipment is 1,320 gallons or less,                     operational equipment should include                  separate facility because of the potential
     regardless of the facility’s total oil-filled           supporting data that: (1) Demonstrates                for greater rule complexity,
     operational equipment aggregate                         why the suggested volume threshold is                 implementation questions and
     capacity; or (2) the aggregate oil-filled               preferred; and (2) estimates the number               confusion across the wide variety of
     operational equipment storage capacity                  (or percentage) of facilities that would              facilities covered by the SPCC rule. For
     at the facility is 10,000 gallons or less.              be eligible for qualified oil-filled                  example, the Agency may have to define
     EPA also considered an alternative                      operational equipment status. Any                     and develop criteria that would be used
     range of thresholds for both an                         alternative approach presented should                 by the facility owner or operator to
     individual piece of oil-filled operational              include an appropriate rationale and                  determine which equipment is a
     equipment (ranging from 2,640 to 5,000                  supporting data in order for the Agency               separate facility, which is not, and how
     gallons) and for the facility aggregate                 to be able to consider it for final action.           the elements of a facility plan would
     capacity of 20,000 gallons in order to                                                                        address these differences. Uncertainty
     provide a greater degree of burden                      b. Multi-Tiered Structure
                                                                                                                   and confusion about the definition of a
     reduction than the alternative                             The tiered structure option was                    facility could lead to a greater lack of
     thresholds considered by EPA. In                        considered in response to comments                    compliance and the potential for greater
     determining potential threshold                         EPA received following publication of a               environmental harm.
     capacities, EPA considered current                      Notice of Data Availability for oil-filled
     thresholds in the rule, as well as                      equipment (69 FR 56184, September 20,                 c. Extension/Suspension Options
     proposals by industry. This was                         2004) and is based on a previous                         EPA could propose an indefinite
     intended to limit this relief to small                  proposal put forth by USWAG that                      extension to the compliance dates,
     pieces of oil-filled operational                        focused on electrical equipment. A                    similar to the previous extensions
     equipment or to facilities storing smaller              central element of this option would                  already granted, that would apply to oil-
     aggregate volumes of oil in oil-filled                  allow the facility owner or operator to               filled operational equipment. This
     operational equipment. The total facility               define each discrete unit of this type of             action would allow EPA more time to
     oil-filled operational equipment storage                oil-filled equipment as a facility. This              decide how to regulate oil-filled
     capacity threshold addresses the co-                    option would also establish three tiers               operational equipment without delaying
     location of oil-filled operational                      for regulated onshore oil-filled                      compliance for the entire universe of
     equipment within a facility.                            operational equipment based on the                    SPCC-regulated facilities and
        The Agency decided not to propose a                  storage capacity of the equipment.                    equipment. However, the extension
     threshold criterion because we believe                  Individual pieces of oil-filled                       would be for a yet-to-be-determined
     this equipment is unique and different                  operational equipment with an oil                     length of time, and for an unspecified
     from bulk storage containers and                        storage capacity of 1,320 gallons or less             set of requirements. Since so many
     manufacturing equipment (flow-through                   (Tier 1) would have been exempt from                  facilities have oil-filled operational
     process) such that the spill history alone              all SPCC requirements. For individual                 equipment, if changes to these
     suffices as a qualifying criterion to                   pieces of oil-filled operational                      requirements are delayed, a significant
     determine eligibility. The Agency was                   equipment with a capacity greater than                number of facilities might have to
     also concerned with the limited amount                  1,320 but less than 20,000 gallons and                modify their existing Plans more than
     of information provided in response to                  which meet additional qualifying                      once to accommodate future rule
     the NODA. The data submitted in                         criteria (Tier II), facility owners and               changes. As with past extensions, EPA
     response to the NODA was primarily                      operators would have the option of                    would continue to require that oil-filled
     from the electrical industry and the                    preparing a contingency plan in lieu of               operational equipment comply with pre-


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     73538                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     2002 SPCC requirements during the                       55 gallons solely for the purpose of                    The Agency is seeking comments on
     interim period at facilities that should                providing fuel for propulsion, or solely              the proposed definition of motive power
     have had an SPCC Plan as of August 16,                  to facilitate the operation of the vehicle.           containers or if there are any other
     2002, providing no immediate relief.                    The concept of ‘‘motive power’’ is not                definitions for ‘‘motive power’’ that
        A suspension of all requirements for                 addressed in the SPCC regulations, but                would be more suitable. Any alternative
     oil-filled operational equipment would                  the EPA–DOT MOU in Appendix A to                      approach presented must include an
     provide immediate relief until further                  40 CFR part 112 specifically refers to the            appropriate rationale and supporting
     notice and provided EPA with more                       transportation of oil, not to                         data in order for the Agency to be able
     time to decide how to regulate this                     transportation in the general sense. As               to consider it for final action.
     equipment. The Agency is concerned                      a result, oil storage containers with a
     that this option provides no                                                                                  2. Proposed Exemption
                                                             capacity greater than 55 gallons used for
     environmental protection during the                     motive power fall under the SPCC rule                    This proposed rule amendment would
     time that new requirements are                          and secondary containment and other                   exempt motive power containers, as
     developed.                                              SPCC requirements apply. However,                     defined above, from SPCC rule
        EPA welcomes comments on these or                    EPA never intended to regulate motive                 applicability through a proposed
     other alternatives that could reduce the                power containers on buses, sport utility              additional paragraph under the general
     burden at facilities with oil-filled                    vehicles, small construction vehicles,                applicability section, § 112.1(d).
     operational equipment, while                            aircraft and farm equipment, or facilities            Furthermore, these storage containers
     maintaining appropriate levels of                       or locations such as heavy equipment                  would not be counted toward facility
     environmental protection. The Agency                    dealers, commercial truck dealers, or                 capacity under § 112.1(d)(2). EPA
     is also interested in comments related to               certain parking lots that may be subject              recognizes that there is a potential for an
     the application of the USWAG proposal                   to the SPCC requirements (including                   oil discharge as described in § 112.1(b)
     to other types of oil-filled operational                bulk storage containment, inspection,                 from motive power containers, such as
     equipment. Any alternative approaches                   and overfill protection) solely because               from a breach in the fuel storage
     presented must include an appropriate                   of the presence of motive power                       container, from an overfill event, or
     rationale and supporting data in order                  containers. Nor does EPA intend to                    from a rupture of oil-filled operational
     for the Agency to be able to consider                   require facilities otherwise subject to the           equipment such as a hydraulic line on
     them for final action.                                  SPCC rule to include motive power                     heavy construction equipment. EPA has
                                                                                                                   the authority, under 311(j)(1)(C) of the
     Qualified Facilities and Qualified Oil-                 containers in their Plans.
                                                                                                                   CWA, to impose requirements to
     Filled Operational Equipment Overlap                    1. Definition of Motive Power                         prevent oil discharges from motive
        Some facilities would meet the                                                                             power containers. The Regional
     criteria for both qualified facilities and                 EPA proposes to amend the Oil                      Administrator has the option under
     qualified oil-filled operational                        Pollution Prevention regulation (40 CFR               § 112.1(f) to require facilities with
     equipment. Such facilities would be                     part 112) to exempt motive power                      motive power containers to prepare and
     able to benefit from both of the burden-                containers, defined as ‘‘onboard bulk                 implement an SPCC Plan or any
     reduction options proposed under                        storage containers used solely to power               applicable part, if a determination is
     today’s action. The owner or operator                   the movement of a motor vehicle, or                   made that it is necessary in order to
     could choose to develop a contingency                   ancillary onboard oil-filled operational              prevent a discharge of oil into waters of
     plan and a written commitment of                        equipment used solely to facilitate its               the United States.
     manpower, equipment and materials in                    operation.’’ This definition is intended                 EPA notes that although this proposal
     lieu of secondary containment for                       to describe containers such as the fuel               provides the fuel tanks and ancillary oil-
     qualified oil-filled operational                        tanks that are used solely to provide fuel            filled operational equipment on motor
     equipment. Since no impracticability                    for a motor vehicle’s movement or the                 vehicles with an exemption from SPCC
     determination would be required for                     hydraulic and lubrication operational                 requirements, oil transfer activities
     qualified oil-filled operational                        oil-filled containers used solely for                 occurring within an SPCC covered
     equipment, the owner or operator could                  other ancillary functions of a motor                  facility would continue to be regulated.
     self-certify his/her SPCC Plan and                      vehicle. This definition would not                    An example of such an activity would
     would not be required to have a PE                      include transfers of fuel or other oil into           be the transfer from an onsite tank via
     develop and certify the contingency                     motive power containers at an otherwise               a dispenser to motive power containers.
     plan for the qualified oil-filled                       regulated facility, or a bulk storage                 This transfer activity is subject to the
     operational equipment. The                              container mounted on a vehicle for any                general secondary containment
     responsibility of preparing a                           purpose other than powering the vehicle               requirements of § 112.7(c), but is not
     contingency plan and identifying the                    itself, for example, a tanker truck or                subject to the requirements of § 112.7(h),
     necessary equipment, materials and                      refueler. The definition of motive power              because it does not occur across a
     manpower to implement the                               containers would not include oil                      loading/unloading rack. Regulating a
     contingency plan would fall on the                      drilling or workover equipment.                       transfer between unregulated motive
     owner or operator of the qualified                      Specifically, it would not apply to the               power containers and a regulated tank is
     facility.                                               drilling or workover rigs themselves;                 required by § 112.1(b), which requires
                                                             however, other earthmoving equipment                  that the SPCC rule apply to owners or
     C. Motive Power                                         (such as a bulldozer, trucks, or earth-               operators of facilities that transfer oil
       There are some motive power                           moving equipment) located at a drilling               and oil products. Another example
     containers already exempt from the                      or workover facility would be included                would be an airport mobile refueler at
     SPCC requirements based on the rule                     in the scope of the definition. Similarly,            an SPCC-regulated airport that transfers
     exemption for containers with an oil                    seismic exploration vehicles located at,              oil to motive power containers or to an
     storage capacity of less than 55 gallons.               for example, oil and gas drilling,                    aircraft. That transfer activity would
     However, there are certain motor                        workover and production facilities,                   again be subject to the general
     vehicles (including aircraft) that contain              would be included in the scope of the                 secondary containment requirements of
     oil in capacities greater than or equal to              definition of motive power.                           § 112.7(c), but not subject to the


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                           73539

     requirements of § 112.7(h), again                       3. Alternative Options Considered                     c. Exclusion From Storage Capacity
     because it does not generally occur                       EPA considered other options to                     Calculation
     across a loading/unloading rack.                        address motive power containers greater
        An onboard bulk storage container                                                                             EPA could exclude motive power
                                                             than 55 gallons in size. These options                containers from the storage capacity
     that supplies oil for the movement of a
                                                             included: (1) Exemption of all motive                 determination at a regulated facility and
     vehicle or operation of onboard
                                                             power containers, except motive power                 from the definition of bulk storage
     equipment, and at the same time is used
                                                             containers on aircraft and mining                     container to clarify that these containers
     for the distribution or storage of this oil
                                                             equipment, which would be subject to                  are not counted towards the 1,320
     is not subject to this proposed
     exemption. For example, a mobile                        the general requirements under § 112.7;               gallon aboveground oil storage
     refueler that has an onboard bulk                       (2) exemption of all motive power                     threshold for the regulation.
     storage container used to distribute fuel               containers below a certain gallon                     Nevertheless, the facility would have to
     to other vehicles on a site may also draw               threshold, with containers above this                 consider these containers in their
     its engine fuel (for propulsion) from that              threshold remaining subject to the                    overall facility SPCC Plan. Although
     container. Because EPA continues to                     general requirements under § 112.7; and               motive power containers would not be
     consider bulk storage containers                        (3) exclusion of motive power                         considered bulk storage containers, they
     mounted on vehicles or towed by a                       containers only from the facility storage             would be subject to the general
     vehicle (such as a typical cargo tanker                 capacity calculation and bulk storage                 requirements of the rule under § 112.7,
     truck) subject to certain transfer-related              container requirements.                               including the provision for secondary
     SPCC requirements, these containers are                 a. Equipment-Based Motive Power                       containment. The facility SPCC Plan
     not subject to today’s proposed                         Exemption                                             would have to identify the presence of
     exemption. As noted above, the                                                                                motive power containers on-site, in
     exemption applies only to onboard bulk                    EPA could choose to exempt motive                   addition to their reasonable potential for
     storage containers used solely to                       power containers, except containers on                discharge as per § 112.7(b). This option
     provide motive power or to facilitate the               aircraft and mining equipment, from the               is more complex for the regulated
     operation of the vehicle.                               requirements of 40 CFR part 112. The                  community and is not a clear exemption
        EPA is not extending the exemption                   majority of motive power containers                   of motive power containers.
     for motive power containers to oil                      would be exempt from the SPCC rule.
                                                             EPA would require that the containers                    Each of these alternative options was
     drilling and workover equipment,                                                                              rejected because they did not address
     including rigs. The Agency believes that                on aircraft and mining equipment be
                                                             covered by the SPCC requirements                      the implementation issues with
     due to the unique nature of oil drilling                                                                      regulating motive power containers
     and workover rig operations and the                     because these containers typically have
                                                             much larger volume than other motive                  under the SPCC requirements. The
     large amounts and high flow rates of oil
                                                             power containers and potentially pose a               Agency welcomes comments on these or
     associated with these activities, it would
                                                             greater threat to the environment in the              other alternatives that could serve to
     not be appropriate or environmentally
                                                             event of a discharge as described in                  reduce the burden for facilities with
     sound to exempt them from the SPCC
                                                             112.1(b). However, in the context of                  motive power containers, while at the
     requirements, and thus they should
                                                             motive power containers, there is no                  same time maintaining appropriate
     remain subject to 40 CFR part 112. The
                                                             information on the degree of likelihood               levels of environmental protection. Any
     purpose of offering the exemption is to
                                                             of a discharge from motive power                      alternative approaches presented must
     offer relief for a particular set of
                                                             containers of different oil storage                   include an appropriate rationale and
     equipment (e.g., automobiles) that may
                                                             capacities nor is there data available to             supporting data in order for the Agency
     be present at an otherwise regulated
     SPCC facility, and not to offer relief for              EPA specific to mining and aircraft                   to be able to consider them for final
     facilities that may be mobile and move                  equipment discharges that would justify               action.
     from place to place as in the case of a                 this option. Therefore, the Agency chose              D. Airport Mobile Refuelers
     drilling or workover rig. Although                      not to propose this option.
     drilling and workover equipment,                                                                                Airport mobile refuelers are vehicles
                                                             b. Threshold-Based Motive Power                       that are used on an airport to refuel
     including rigs, are not exempt, other                   Exemption
     motive power equipment located at                                                                             aircraft and ground service equipment.
     drilling or workover facilities (e.g.,                    Another option considered was to                    Their onboard bulk storage containers
     trucks, automobiles, bulldozers, seismic                exempt motive power containers with a                 are used to transport and transfer fuel
     exploration vehicles or other earth-                    capacity below a certain threshold, and               and are subject to the SPCC rule because
     moving equipment) would be exempted.                    requiring containers with a capacity                  they are containers used to store oil
     The agency believes that the general                    above the established threshold to have               prior to use, while being used, or prior
     protection and the spill response and                   appropriate containment under                         to further distribution in commerce. As
     planning activities provided at an                      § 112.7(c). Those motive power                        such, they are subject to all applicable
     otherwise regulated SPCC facility will                  containers included in the rule would                 SPCC rule provisions, including the
     help the facility to address the spills                 only be required to have general                      secondary containment provisions of
     associated with these motive power                      containment, and would be exempt                      § 112.8(c)(2) (applicable to all bulk
     containers. However, the specific                       from all other requirements in §§ 112.7               storage containers) and § 112.8(c)(11)
     provisions (such as blowout prevention)                 and 112.8(c). However, EPA rejected                   (applicable more specifically to mobile/
     which are present in the current rule for               this option because it has no basis for               portable bulk storage containers). These
     drilling or workover rigs, need to be                   choosing an appropriate threshold for                 provisions require a secondary means of
     preserved to maintain an adequate level                 these containers and there is no data                 containment, such as a dike or
     of environmental protection for these                   that clearly supports any specific                    catchment basin, sufficient to contain
     unique activities. Therefore, an                        quantity. In addition, it would still                 the capacity of the largest single
     exemption for drilling and workover                     present implementation problems for                   compartment or container with
     equipment, including rigs, is                           those motive power containers that were               sufficient freeboard to contain
     inappropriate.                                          subject to the regulation.                            precipitation.


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     73540                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

        Regulated community members in the                   secondary containment requirements at                 Secondary containment systems
     aviation sector have expressed concern                  § 112.8(c)(2) and (11) would directly                 sufficient to contain the capacity of the
     that requiring sized secondary                          conflict with the Uniform Fire Code                   largest single compartment or container
     containment for airport mobile refuelers                applicable to fuel handling at airports.              with sufficient freeboard to contain
     is not practicable for safety and security              EPA believes, however, that these bulk                precipitation would no longer be
     reasons. They argue that requiring                      storage containers should remain                      required. Notwithstanding, there is a
     refuelers to park in specially designed                 subject to the general secondary                      potential for oil discharges as described
     secondary containment areas located                     containment requirements at § 112.7(c)                in § 112.1(b) from airport mobile
     within an airport’s aircraft operations                 as this provision affords sufficient                  refuelers. Indeed, there are documented
     area could create a safety and security                 flexibility to the owner/operator and                 cases of reportable discharges while fuel
     hazard because it entails grouping the                  certifying PE to select a spill prevention            is transferred from storage into the
     vehicles or placing impediments in the                  method that would not conflict with the               mobile refuelers and during aircraft
     operations area. In addition, they claim                applicable Uniform Fire Code. Thus,                   refueling activities. Fuel leaks have
     that requiring mobile refuelers to return               EPA is proposing to exempt airport                    occurred while the mobile refueler is
     to containment areas located within the                 mobile refuelers from the specifically                parked or idle. Therefore, the general
     airport’s tank farm between refueling                   sized secondary containment                           secondary containment requirements of
     operations may increase the risk of                     requirements for bulk storage containers              § 112.7(c) would continue to apply to
     accidents (and therefore accidental oil                 in § 112.8(c)(2) and (11). EPA believes               airport mobile refuelers under this
     discharge), as the vehicles would travel                that this exemption is appropriate for                proposal.
     with increased frequency through the                    airport mobile refuelers, so as not to                   Section 112.7(c) lists several
     busy aircraft operations area. They also                conflict with the specific Uniform Fire               appropriate containment methods a
     claim that providing secondary                          Code requirements for airport fueling                 facility owner or operator can provide,
     containment for mobile refuelers during                 activities, while preserving                          including curbs, gutters, barriers, or
     airport operations presents inherent                    environmental protection (especially for              sorbent materials. However, EPA
     difficulties and point to controls on                   fuel transfers associated with airport                recognizes that permanent containment
     design, inspection, maintenance and                     mobile refuelers), afforded by the spill              structures such as curbs may not be
     operation of mobile refuelers imposed                   prevention provisions outlined in                     appropriate in all cases. The Agency
     by the Federal Aviation                                 § 112.7(c). EPA also believes that this               made informal contact with nine airport
     Administration’s Advisory Circulars.                    clarification for airport mobile refuelers            engineering and construction firms who
     For example, the storage containers on                  applies to mobile refuelers operating at              indicated that providing sized
     the mobile refuelers must be                            all airports, both those certified under              secondary containment areas for airport
     manufactured to U.S. DOT–406                            14 CFR part 139 and non-certified                     mobile refuelers is not a common
     specifications for pressure vessels (49                 airports.                                             practice. We also learned that mobile
     CFR 178.346).                                                                                                 refuelers are not involved in every
                                                             1. Definition of Airport Mobile Refueler              airport fueling operation, and when
        EPA is aware that certain airports                      EPA proposes to amend the Oil                      refuelers are present, there is no
     subject to FAA’s regulations at 14 CFR                  Pollution Prevention regulation (40 CFR               standard method for ensuring sized
     part 139 require certification by the                   part 112) to exempt airport mobile                    secondary containment. EPA cautions
     FAA Administrator or his delegated                      refuelers from the requirements of                    that these results are drawn from only
     agent. As part of this certification, the               § 112.8(c)(2) and (11). In today’s                    a small number of firms that provide
     Agency understands that compliance                      proposal, EPA defines an airport mobile               construction and engineering support
     with Uniform Fire Code requirements,                    refueler as ‘‘a vehicle with an onboard               for the aviation industry rather than
     among other requirements in 14 CFR                      bulk storage container designed for, or               directly from the airport owners or
     part 139, must be detailed in the Airport               used to, store and transport fuel for                 operators.
     Certification Manual to obtain FAA                      transfer into or from an aircraft or                     Appropriate containment and/or
     approval and thus an Airport Operating                  ground service equipment.’’ This                      diversionary structures or equipment
     Certificate per part 139. The Agency                    definition is adapted from definitions in             must be designed to prevent a discharge
     understands that the applicable Uniform                 the U.S. DOT Federal Aviation                         as described in § 112.1(b). The Agency
     Fire Code includes National Fire                        Administration’s Advisory Circular 150/               believes general secondary containment
     Protection Association’s (NFPA) 30,                     5230–4 on Aircraft Fuel Storage,                      should be designed to address the most
     Flammable and Combustible Liquids                       Handling, and Dispensing on Airports,                 likely discharge from the primary
     Code, NFPA 407, Standard for Aircraft                   and NFPA 407 for Aircraft Fuel                        containment system. Section § 112.7(c)
     Fuel Servicing and NFPA 415, Standard                   Servicing. The definition is intended to              allows for the use of certain types of
     on Airport Terminal Buildings, Fueling                  describe vehicles of various sizes                    active containment measures
     Ramp Drainage, and Loading Walkways.                    equipped with a bulk storage container                (countermeasures or spill response
     In particular, NFPA 407 requires that                   such as a cargo tank (tank trucks, tank               capability) which prevent a discharge to
     aircraft fuel servicing vehicles and carts              full trailers, tank semitrailers, etc.) that          navigable waters or adjoining
     shall be positioned so that a clear path                are used to fuel or defuel aircraft at                shorelines. Active containment
     of egress from the aircraft for fuel                    airports.                                             measures are those that require
     servicing vehicles shall be maintained                                                                        deployment or other specific action by
     [5.12.1]. Further, in NFPA 415, the code                2. Proposed Amended Requirements                      the owner or operator. These measures
     specifically states that in no case shall                  This proposed amendment would                      may be deployed either before an
     the design of a drainage system of any                  revise § 112.8(c)(2) and (11) to                      activity involving the handling of oil
     aircraft fueling ramp allow fuel to                     specifically exempt airport mobile                    starts, or in reaction to a discharge so
     collect on the aircraft fueling ramp or                 refuelers, as defined above, from these               long as the active measure is designed
     adjacent ground surfaces where it                       provisions. Since airport mobile                      and can reasonably be implemented to
     constitutes a fire hazard [5.1.4]. As such,             refuelers are mobile or portable bulk                 prevent an oil spill from reaching
     EPA believes that subjecting mobile                     storage containers, the other provisions              navigable water or adjoining shorelines.
     airport refuelers to the specifically sized             of § 112.8(c) would still apply.                      Passive measures are permanent


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                                    73541

     installations and do not require                        415 to all airport facilities.                        promulgated the identical requirements
     deployment or action by the owner/                      Consequently, EPA did not propose this                for facilities storing or using all classes
     operator. The efficacy of active                        approach. EPA welcomes comment on                     of oil in the final rule. As a result,
     containment measures to prevent a                       this issue.                                           certain requirements, including
     discharge depends on their technical                       The Agency seeks comments on the                   requirements for types of facilities that
     effectiveness (e.g., mode of operation,                 proposed definition for ‘‘airport mobile              only exist in the petroleum sector, also
     absorption rate), placement and                         refuelers,’’ the adequacy of general                  apply to facilities handling animal fats
     quantity, and timely deployment prior                   secondary containment requirements for                and vegetable oils.2
     to, or following a discharge. For                       preventing discharges as described in                    In today’s proposal, the Agency
     discharges that occur only during                       § 112.1(b) from airport mobile refuelers,             proposes to amend Subpart C of part
     manned activities, such as those                        whether the proposed regulatory relief                112 by removing § 112.13 (requirements
     occurring during transfers, an active                   satisfies the concerns of airport owners              for onshore oil production facilities),
     measure (e.g, sock, mat, other portable                 and/or operators, and the ability to                  § 112.14 (requirements for onshore oil
     barrier, or land-based response                         apply active measures as described in                 drilling and workover facilities), and
     capability) may be appropriate,                         § 112.7(c). Additionally, the Agency                  § 112.15 (requirements for offshore oil
     provided that the measure is capable of                 seeks comments on whether the relief                  drilling, production, or workover
     containing the oil discharge volume and                 provided specific to § 112.8(c)(2) and                facilities). As members of the regulated
     rate, and is timely and properly                        (11) should be more broadly applied to                community pointed out, facilities that
     constructed/deployed. The Agency also                   other types of mobile refuelers or                    process, store, use, or transport animal
     believes that these active measures may                 railcars that are subject to § 112.8(c)(2)            fats and/or vegetable oils (AFVO) do not
     be appropriately applied to other                       and (11) and § 112.12(c)(2) and (11).                 engage in production, drilling or
     situations (e.g., when the refueler is not              Any alternative approaches presented                  workover. EPA agrees that these
     engaged in transfer operations or                       must include an appropriate rationale                 sections should not be included in part
     moving around the facility).                            and supporting data in order for the                  112, subpart C and therefore proposes to
        EPA believes that the general                        Agency to be able to consider them for                remove them from the rule. The Agency
     provisions for secondary containment                    final action.                                         seeks comment on the proposal to
     address the most likely spill scenarios                                                                       remove and reserve these sections of
                                                             E. Animal Fats and Vegetable Oils
     associated with this equipment (i.e.,                                                                         Subpart C of the regulation.
     transfers from the refuelers to the                        In 1995, Congress enacted the Edible                  The Agency has not developed a
     aircraft). Section 112.7(c) does not                    Oil Regulatory Reform Act (EORRA), 33                 proposal following the 1999 Advanced
     prescribe a size for a secondary                        U.S.C. 2720. That statute requires most               Notice of Proposed Rulemaking
     containment structure but does require                  Federal agencies to differentiate                     regarding differentiation of AFVO from
     appropriate containment and/or                          between, and establish separate classes               petroleum and other oils in the SPCC
     diversionary structures or equipment to                 for, various types of oil, specifically,              rule (64 FR 17227). To assist the Agency
     prevent a discharge as described in                     animal fats and oils and greases, and                 in its ongoing consideration of this
     § 112.1(b). These proposed revisions                    fish and marine mammal oils, and for                  issue, EPA requests suggestions for
     would maintain environmental                            oils of vegetable origin, including oils              additional amendments that would
     protection, while still allowing the                    from seeds, nuts, and kernels; and other              differentiate AFVOs from other classes
     necessary flexibility for compliance                    oils and greases, including petroleum.                of oils in the SPCC rule and scientific
     with the general secondary containment                  EORRA also requires affected agencies                 support for those amendments. In
     requirements of the rule.                               to apply standards to the different                   particular, EPA is seeking information
        Alternatively, EPA considered                        classes, based on considerations of                   that specifically addresses the criteria
     whether the general secondary                           differences in the physical, chemical,                for differentiation set forth in EORRA,
     containment requirements of § 112.7(c)                  biological, and other properties of these             33 U.S.C. 2720(b); that is, differences in
     should be applied to airport mobile                     oils and on the environmental effects of              the physical, chemical, biological, and
     refuelers only during any fuel transfer                 the oils.                                             other properties, as well as the
     activity and not while the refueler is                     In the July 17, 2002 final SPCC rule,              environmental effects, of various types
     moving or out of service (e.g. parked or                the Agency promulgated general                        of oil, in order for the Agency to support
     idle) provided that the facility is in                  requirements in § 112.7 for SPCC Plans                a rationale for differentiation of oil spill
     compliance with current NFPA 407 and                    for all facilities and all types of oil, as           prevention requirements. The Agency
     NFPA 415 requirements and any                           well as additional requirements tailored              will continue to examine these issues to
     applicable FAA requirements that                        to specific types of facilities in §§ 112.8           determine the appropriateness of
     govern fuel handling. If a facility is not              through 112.15. At that time, in                      amendments to the regulatory scheme
     in compliance with NFPA 407, and 415                    response to EORRA, EPA established                    which differentiate the SPCC
     and FAA requirements, then it must                      separate subparts in the rule for                     requirements for AFVO from the
     comply with the general secondary                       facilities storing or using the various               requirements for petroleum and other
     containment requirements at all times.                  classes of oil listed in that act. Subpart            oils.
     The Agency did not propose this                         C (§§ 112.12 through 112.15) sets out the
     approach because NFPA 407 and NFPA                      requirements for facilities with animal               VI. Proposed Extension of Compliance
     415 are designed for fire protection                    fats and oils and greases, and fish and               Dates for Farms
     rather than environmental protection; a                 marine mammal oils; and for oils of                     The agricultural community has
     properly designed drainage system that                  vegetable origin, including oils from                 provided EPA with additional
     meets the intent of NFPA 407 and NFPA                   seeds, nuts, fruits, and kernels
     415 might not adequately prevent fuel                   (hereinafter ‘‘animal fats and vegetable                2 The Agency also responded to a petition it

     from being discharged in quantities that                oils’’ or ‘‘AFVO’’). Subpart B (§§ 112.8              received on August 12, 1994 to treat facilities that
     may be harmful. In addition, EPA has                    through 112.11) sets out the                          handle, store or transport animal fats and/or
                                                                                                                   vegetable oils differently from those facilities that
     no information on the degree of                         requirements for facilities with                      store petroleum based oil. EPA denied that petition,
     compliance with, alternatives to, or                    petroleum oils and non-petroleum oils                 and published the denial in a Federal Register
     applicability of, NFPA 407 and NFPA                     other than AFVO. The Agency                           notice (see 62 FR 54508, October 20, 1997).



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     73542                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     information and data which suggests                     This same 10,000-gallon threshold                     production of crops or raising of
     that the universe of farms subject to the               discharge volume is also one factor used              animals, including fish. The preamble to
     SPCC rule may be much larger than EPA                   in identifying facilities that must                   the UST rule explains that the term
     estimated in the preparation of the 2002                prepare and submit a Facility Response                ‘‘farm’’ includes fish hatcheries,
     SPCC rule revisions. EPA believes that                  Plan (FRP) under § 112.20(f)(1). In                   rangeland, and nurseries with growing
     the unique characteristics of farms pose                addition, 10,000 gallons is a common                  operations, but does not include
     particular challenges to SPCC                           storage capacity and such a threshold                 laboratories where animals are raised,
     compliance and that further                             would extend the compliance dates for                 land used to grow timber, and pesticide
     consideration of the requirements as                    a significant portion of the farm sector.             aviation operations. This term also does
     they relate to farms is warranted. We are               Data provided by the agricultural                     not include retail stores or garden
     particularly concerned that many of                     industry and the U.S. Department of                   centers where the product of nursery
     these farms are small and that subjecting               Agriculture indicate that the average                 farms is marketed, but not produced,
     them to these requirements may not be                   aggregated aboveground oil storage                    nor does EPA interpret the term ‘‘farm’’
     necessary. Therefore, EPA intends to                    capacity at farms surveyed in 2005 was                to include golf courses or other places
     review the impact of the SPCC                           5,550 gallons; approximately 83 percent               dedicated primarily to recreational,
     requirements on farms and will take                     of surveyed farms have aggregated oil                 aesthetic, or other non-agricultural
     action in a future rulemaking.                          storage below 10,000 gallons. Farms                   activities. (See 53 FR 37082, 37117,
        While determining if the agriculture                 with less than 1,000 acres had an                     September 23, 1988.)
     sector warrants specific consideration                  average oil storage capacity of less than                EPA also considered defining a farm
     under the SPCC rule, EPA proposes to                    2,500 gallons; farms with over 1,000                  by listing the appropriate North
     extend the compliance dates for                         acres had an average oil storage capacity             American Industry Classification
     preparing or amending and                               of almost 8,000 gallons. (See ‘‘Fuel/Oil              System (NAICS) codes, but we believe
     implementing SPCC Plans for farms that                  Storage and Delivery for Farmers and                  that the definition proposed today in
     have a total storage capacity of less than              Cooperatives,’’ USDA, March 2005, in                  § 112.2, along with the 10,000 gallon
     10,000 gallons. Our basis for taking this               the docket for today’s proposal.)                     threshold quantity, more effectively
     action is several fold. First, there are                   The Agency seeks comments on                       identifies the sector to which the
     factors concerning the physical layout of               whether this threshold appropriately                  extension would appropriately apply.
     a farm that make this sector unique                     addresses the concerns of farms with                  Potentially affected entities that fall
     within the universe of SPCC-regulated                   relatively smaller volumes of oil, while              within certain NAICS codes, including
     facilities. For example, farms vary                     maintaining the environmental                         111 (Crop Production) and 112 (Animal
     considerably in design and size (less                   protection intended by the regulation. If             Production), are likely to fall within the
     than an acre to many thousand acres).                   commenters suggest alternative volume                 proposed definition of farm and should
     Further, the environment in which                       thresholds, it will be important for the              consider the definition and eligibility
     farms operate varies considerably from                  comments to also include a justification              criteria further to determine if the
     other industries. Farmers often own                     for such alternative volume thresholds                proposed extension applies.
     and/or farm land that are                               in order for the Agency to adequately                    EPA utilized elements of the UST
     noncontiguous, and may be separated                     consider the comments submitted. This                 definition of farm, in combination with
     by roads and other obstacles. Oil is                    data would be useful in final rule                    the Census definition, in developing
     generally not centrally stored and oil                  deliberations.                                        today’s proposal. By combining
     containers may be widely dispersed.                        The Agency considers a farm as a                   elements of both of these approaches,
     Certain SPCC requirements (such as                      specific type of facility under the SPCC              the Agency believes the proposed
     fencing, lighting, etc.) may be                         rule and proposes a specific definition               definition more specifically targets the
     disproportionately difficult and                        for farm under today’s proposal. For this             intended universe for the extension.
     expensive for farmers to implement, and                 proposed extension, EPA would define                  EPA seeks comment on the proposed
     provide little environmental benefit.                   ‘‘farm,’’ in part, by adapting the                    definition for farms, and whether an
     Also, because farms are often residential               definition used by the National                       alternate definition of ‘‘farm’’ may be
     properties, under the existing rule,                    Agricultural Statistics Service (NASS) in             more appropriate. Comments may also
     home heating oil tanks may be required                  its Census of Agriculture. NASS defines               address the proposed 10,000 gallon
     to be covered by the farm’s SPCC Plan.                  a farm as any place from which $1,000                 threshold for qualifying for the
     Other rule provisions, including                        or more of agricultural products were                 extension, and whether an alternative
     security, would also affect the                         produced and sold, or normally would                  threshold may be more appropriate. Any
     residential portions of a farm. For these               have been sold, during the census year.               alternative approaches presented must
     reasons, we are proposing an extension                  Operations receiving $1,000 or more in                include an appropriate rationale and
     of the compliance date for farms with a                 Federal government payments are                       supporting data in order for the Agency
     total storage capacity of less than 10,000              counted as farms, even if they have no                to be able to consider them for final
     gallons. See Section B below, for details.              sales and otherwise lack the potential to             action.
                                                             have $1,000 or more in sales.
     A. Eligibility Criteria                                    EPA also considered the definition it              B. Proposed Compliance Date Extension
        EPA proposes the 10,000-gallon                       uses to exempt farm tanks under the                   for Farms
     threshold for farms to be consistent with               Underground Storage Tank (UST)                          With today’s action, EPA proposes to
     the threshold quantity used in the NCP                  regulations at 40 CFR part 280. The                   extend the compliance dates for the
     to classify oil discharges to inland                    Resource Conservation and Recovery                    owner or operator of a farm, as defined
     waters as ‘‘major’’ (40 CFR 300.5). Thus,               Act (RCRA) as amended, section                        in proposed § 112.2, that has a total
     a facility storing less than 10,000 gallons             9001(1)(A), exempts farm and                          storage capacity of 10,000 gallons or
     of oil could not be involved in a major                 residential USTs storing less than 1,100              less, to prepare or amend and
     discharge based on the NCP quantitative                 gallons of motor fuel for                             implement the farm’s SPCC Plan. The
     criterion alone, although use of this                   ‘‘noncommercial’’ purposes. As defined                Agency proposes to extend the farm
     numerical criteria is not meant to imply                in 40 CFR 280.12, a farm tank is a tank               compliance dates until EPA completes
     that smaller discharges are not harmful.                located on a tract of land devoted to the             information collection and analysis to


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                             73543

     determine if differentiated SPCC                           (3) Materially alter the budgetary                 of the SPCC Proposed Rule are as
     requirements may be appropriate for                     impact of entitlements, grants, user fees,            follows:
     farms. If the Agency determines that                    or loan programs or the rights and                       Develop the baseline universe of
     differentiated requirements for farms are               obligations of recipients thereof; or                 SPCC-regulated facilities and unit cost
     warranted, the Agency will publish a                       (4) Raise novel legal or policy issues             of compliance estimates for the analysis;
     notice in the Federal Register proposing                arising out of legal mandates, the                       • Estimate the number of facilities
     new compliance dates for eligible farms.                President’s priorities, or the principles             affected by each of the proposed
        In working to determine how to                       set forth in the Executive Order.                     options;
     properly address farms under the SPCC                      Under the terms of Executive Order                    • Estimate unit compliance costs for
     regulation, EPA will be partnering with                 12866, this action has been judged as a               all elements of the proposed options;
                                                             ‘‘significant regulatory action’’ because                • Estimate compliance cost savings to
     USDA to acquire information to
                                                             it will have an annual effect on the                  potentially affected facilities; and
     determine if differentiation may be                                                                              • Annualize compliance cost savings
     appropriate. EPA believes that, at this                 economy of $100 million or more or
                                                                                                                   over a ten-year period and discount the
     time, an extension is appropriate                       adversely affect in a material way the
                                                                                                                   estimates to the current year.
     because of the large scope of the                       economy, a sector of the economy,                        EPA also considered the potential
     agricultural community that may be                      productivity, competition, jobs, the                  impacts of the proposed rule and
     subject to the SPCC requirements, the                   environment, public health or safety, or              alternative options on the risk of oil
     fact that many farms are small, and the                 State, local, or tribal governments or                discharges, which could lead to harmful
     time needed to determine how the SPCC                   communities. Therefore, this action was               environmental, human health, and
     requirements should apply if at all, and                submitted to OMB for review and the                   welfare consequences. Because of the
     the effect of today’s proposal on the                   Agency has prepared a regulatory                      lack of data on regulated entities and
     farm sector. We are also considering as                 analysis in support of today’s action,                their likely response to the regulatory
     an alternative approach to exempt farms                 titled, ‘‘Regulatory Analysis of the Spill            options, the magnitude of such risks is
     below a set oil storage capacity                        Prevention, Control, and                              highly uncertain. Therefore, EPA
     threshold (such as 10,000 or 20,000                     Countermeasure Proposed Rule’’                        examined the general nature of the
     gallons) from the SPCC regulation.                      (November 2005). Changes made in                      proposed and alternative changes to
        EPA seeks comment on whether the                     response to OMB suggestions or                        assess possible effects on risk.
     proposed extension is warranted, or if a                recommendations will be documented
     specific time period would be more                      in the public record. EPA requests                    b. Baseline for the Analysis
     appropriate than the proposed                           comments from the public on the costs                    The impacts of the proposed
     indefinite extension. EPA also requests                 and benefits of any of the possible                   regulation depend on the assumed
     comment on whether it is more                           regulatory changes discussed in this                  baseline of industry behavior in the
     appropriate to exempt all farms having                  proposed rulemaking, as well as on                    absence of a new rulemaking. EPA
     less than a certain oil storage capacity                appropriate methodologies for assessing               developed a baseline for the regulatory
     threshold (such as 10,000 or 20,000                     them.                                                 analysis to assess the change in
     gallons) from all SPCC requirements.                    1. Summary of Regulatory Analysis                     regulatory compliance costs associated
     Any alternative approaches presented                                                                          with each of the proposed options,
     must include an appropriate rationale                     The regulatory analysis developed in                mutually exclusive of each other. The
     and supporting data in order for the                    support of today’s action considers                   baseline provides the benchmark from
     Agency to be able to consider them for                  changes in regulatory compliance costs                which changes in regulatory behavior,
     final action.                                           for affected facility owners and                      caused by the proposed options, are
                                                             operators, changes in paperwork                       measured.
     VII. Statutory and Executive Order                      burden, and impacts on small                             EPA is aware of industry concerns
     Reviews                                                 businesses. In addition, EPA examined                 regarding potential non-compliance
     A. Executive Order 12866—Regulatory                     qualitatively the potential impacts of the            among certain facility sizes or sectors,
     Planning and Review                                     regulatory options on oil discharge risk.             although no reliable empirical evidence
                                                             EPA intends to continue to update its                 exists to assess the scope and magnitude
       Under Executive Order 12866 (58 FR                    estimates and assumptions for use in the              of such non-compliance. EPA explicitly
     51735, October 4, 1993), the Agency                     analysis supporting the final rule.                   considered whether to incorporate non-
     must determine whether a regulatory                                                                           compliance in its regulatory analysis of
     action is ‘‘significant’’ and therefore                 a. General Approach
                                                                                                                   the 2002 revised rule: ‘‘It is possible that
     subject to Office of Management and                       This analysis develops benefit and                  some facilities have misinterpreted the
     Budget (OMB) review and the                             cost estimates for the proposed actions               existing regulation and are not currently
     requirements of the Executive Order.                    in the four major components of the                   in full compliance with existing
     The order defines ‘‘significant                         proposed rule:                                        requirements, but there is no practical
     regulatory action’’ as one that is likely                 Qualified facilities with smaller                   way to measure the level of non-
     to result in a rule that may:                           storage capacities;                                   compliance. Moreover, the costs of
       (1) Have an annual effect on the                        • Oil-filled operational equipment;                 coming into compliance with the
     economy of $100 million or more or                        • Motive power;                                     clarified requirements are not properly
     adversely affect in a material way the                    • Airport mobile refuelers.                         attributed to this final regulation.’’
     economy, a sector of the economy,                         The analysis then assesses the                         This rule does not impact any
     productivity, competition, jobs, the                    impacts of the alternative regulatory                 facilities that are not already required to
     environment, public health or safety, or                options that EPA considered.                          meet the standards of the SPCC rule.
     State, local, or tribal governments or                    For each of the components, the                     The costs of SPCC requirements were
     communities;                                            benefits consist of reductions in social              already imposed on the regulated
       (2) Create a serious inconsistency or                 costs accruing from reductions in                     community by prior rulemaking in 1973
     otherwise interfere with an action taken                compliance costs. The main steps used                 and 2002. For the benefit-cost analysis,
     or planned by another agency;                           to estimate the compliance cost impacts               therefore, EPA is treating these costs as


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     73544                    Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     liabilities the regulated entities                          2. Qualified Facilities                               from discussions with several
     currently have—whether or not they                                                                                engineering firms.
     have actually made the capital                                 Today, EPA is proposing to provide                    The unit cost of integrity testing was
     expenditures to comply. In this                             an option for qualified facilities to                 estimated based on interviews with
     analytical construct, these firms are                       eliminate the requirement for PE                      several tank inspectors. EPA calculated
     simply delaying the expenditures for the                    certification, and to provide flexibility             the total cost of integrity testing per
     costs they already carry. Therefore, EPA                    with respect to security measures and                 facility by multiplying for a single tank
     used as its baseline the requirements                       integrity testing for these facilities. This          by the number of tanks per facility.3
     under 40 CFR part 112 (‘‘SPCC rule’’),                      proposed option would provide the                        EPA multiplied burden hour
     as amended in 2002 (67 FR 47042). EPA                       greatest relief to owners and operators of            estimates by the hourly wage rates for
     does recognize, however, that there is                      new facilities that are preparing their               specific labor categories to determine
     non-compliance with the SPCC                                first SPCC Plan, as well as cost savings              the per-facility costs associated with the
     requirements by some portion of the                         for owners and operators of existing                  proposed rule’s paperwork
     regulated community.                                        facilities that make substantive changes              requirements. The labor wage rates for
                                                                 to their Plans in the future.                         private industry were derived from the
     c. Description of SPCC-Regulated                                                                                  March 2005 U.S. Department of Labor’s
     Universe                                                    a. Universe of Affected Facilities
                                                                                                                       Employment Cost Indexes and Levels.4
        This section describes the universe of                      As noted above, EPA estimates that                    EPA estimates that if 50 percent of the
     facilities subject to current and                           approximately 322,000 facilities with                 facilities complied with the alternative
     proposed SPCC regulations. Calculating                      storage capacities below 10,000 gallons               proposed today for qualified facilities
     the number of regulated entities is not                     are subject to the SPCC requirements in               that this option could reduce
     straightforward. The SPCC rule does not                     the first year. Over the next ten years,              compliance costs by $22.5 million and
     include a notification requirement and,                     approximately 335,000 facilities with                 $18.4 million per year, discounted at 3
     with certain exceptions, owners and                         storage capacities below 10,000 gallons               percent and 7 percent, respectively. EPA
     operators do not submit their SPCC                          would be subject to SPCC on average.                  assumed that the proposed flexibility for
     Plans to EPA. The Agency has invested                       As with all of the regulatory options                 integrity testing would reduce the unit
     considerable resources into estimating                      considered in developing today’s                      cost of testing by 50 percent. If 25
     the number of entities affected by the                      proposed rule, facilities would have the              percent of facilities under 10,000
     SPCC rule.                                                  choice of complying with the existing                 gallons qualified for this option,
        EPA has updated its previous                                                                                   compliance costs would decrease by
                                                                 SPCC rule (as amended in 2002) or
     estimates of the number of regulated                                                                              $11.2 million and $9.19 million per
                                                                 taking advantage of the proposed
     facilities. The Agency used data from                                                                             year, discounted at 3 percent and 7
                                                                 change. EPA assumes that facilities
     the 2002 Economic Census, the Census                                                                              percent, respectively. If 75 percent of
                                                                 would likely choose an alternative
     of Agriculture, and a variety of other                                                                            facilities under 10,000 gallons qualified
                                                                 requirement if (a) they met the criteria,
     governmental and non-governmental                                                                                 for this option, compliance costs would
                                                                 and (b) it was less costly or otherwise
     sources to estimate the number of                                                                                 be reduced by $33.7 million and $27.6
                                                                 offered greater benefits than the existing
     regulated facilities in a large set of                                                                            million per year, discounted at 3
                                                                 requirement. As with the other options
                                                                                                                       percent and 7 percent, respectively.
     industrial and commercial sectors.                          being considered today, EPA does not
     Since data were not available for all                       know how many facilities would meet                   3. Oil-Filled Operational Equipment
     states, the basic estimation procedure                      the criteria and choose to avail                         Today, EPA is proposing to allow
     involved extrapolating from eight state                     themselves of the ‘‘Qualified Facility’’              owners and operators of facilities
     databases using information from the                        options. Therefore, EPA examined the                  featuring certain kinds of oil-filled
     U.S. Census Bureau. The estimates of                        impact of the ‘‘Qualified Facility’’                  operational equipment to establish and
     the SPCC universe were developed for                        options under three scenarios: 25                     document an inspection or monitoring
     31 industry sectors. Full documentation                     percent, 50 percent, and 75 percent of                program, prepare an oil spill
     of the estimates appears in the                             Category I facilities would likely meet               contingency plan and provide a written
     Regulatory Analysis document                                ‘‘Qualified Facility’’ status and decide to           commitment of manpower, equipment,
     accompanying this proposal.                                 implement this approach. EPA                          and materials in lieu of providing
        In total, EPA estimates that 618,000                     estimated that the 84,000 facilities                  secondary containment without making
     facilities are currently regulated under                    would choose to take advantage of this                an individual impracticability
     the SPCC rule. Oil production facilities                    option under the 25-percent scenario;                 determination. The option is limited to
     (28 percent), farms (25 percent) and                        167,000 facilities under the 50-percent               facilities that have had no discharges as
     electric utility plants (8 percent)                         scenario, and 251,000 facilities under                described in § 112.1(b) from any oil-
     account for most of the SPCC-regulated                      the 75 percent scenario.                              filled operational equipment in the ten
     facilities. Following is a table that                                                                             years prior to the SPCC Plan
     summarizes the estimated number of                          b. Compliance Cost Savings
                                                                                                                       certification date, or since becoming
     regulated facilities, by size category:                    The main assumptions affecting all                     subject to 40 CFR part 112 if the facility
                                                              regulatory options were based on                         has been in operation for less than ten
                          Aggregate            Number of                                                               years.
     Category              capacity             facilities    updated assumptions from the analyses
                                                              conducted for the 2002 final rule. For                   a. Universe of Affected Facilities
     I ............   1,320 to 10,000               322,000 example, EPA revised the cost estimate
                        gallons.                              for obtaining Professional Engineer (PE)                    The proposed changes for qualified
     II ...........   10,001 to 42,000              216,000 certification of a new SPCC Plan. The                      oil-filled operational equipment could
                        gallons.                              estimate increased from $1,120 to
     III ..........   42,001 to 1 mil-                77,000 $2,000 for a PE to certify a new Plan and                   3 The number of tanks per facility was calculated

                        lion gallons.                                                                                  using state oil tank databases.
                                                              from $560 to $750 for a PE to certify a                    4 United States Department of Labor, Bureau of
     IV ..........    greater than 1                    3,000
                        million gallons.
                                                              technical change to an existing Plan.                    Labor Statistics, Employer Costs for Employee
                                                              The estimates are based on findings                      Compensation, June 2005.



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     address such items as hydraulic                            EPA acknowledges that some fraction                motor vehicle, or ancillary onboard oil-
     systems, lubricating systems (e.g., those               of new facilities would, according to the             filled operational equipment used solely
     for pumps, compressors, pumpjacks,                      current SPCC rule requirements,                       to facilitate its operation. Although EPA
     and other rotating equipment including                  provide an impracticability                           has no empirical data on the amount of
     pumpjack lubrication systems), gear                     determination and provide a                           such storage at facilities regulated by the
     boxes, machining coolant systems, heat                  contingency plan and a written                        SPCC rule, EPA does not expect that
     transfer systems, transformers, circuit                 commitment of manpower, equipment                     many facility owners and operators have
     breakers, electrical switches, and other                and materials, rather than pursue                     included motive power in their oil
     systems containing oil to enable                        secondary containment. In these cases,                storage capacity calculations and SPCC
     operation of the devices. Due to data                   the proposed action’s cost savings                    Plans. For those who have considered
     and time limitations, EPA focused its                   would be lower, since owners and                      motive power storage, EPA assumes that
     economic analysis on the electric utility               operators would only be avoiding an                   the volume that would be exempt under
     sector. Consequently, the analysis likely               impracticability determination rather                 the proposed rule would not represent
     underestimates the total cost savings                   than secondary containment. EPA does                  a large fraction of the facility’s aggregate
     from the proposed ‘‘qualified oil-filled                not know what fraction of facilities falls            capacity.
     operational equipment’’ action and the                  into this situation, and has decided not
                                                                                                                   a. Universe of Affected Facilities
     alternative options.                                    to incorporate the scenario in the
                                                             analysis. As a result, EPA’s analysis                    To identify industries that are
        Specifically, EPA used data on the
                                                             likely overestimates the cost savings to              potentially affected by motive power
     number of substations listed by each
                                                             facilities in the electric utility industry           exemptions, EPA started with
     major utility reporting to the Federal
                                                             from the proposed action.                             information from industry comments to
     Energy Regulatory Commission (FERC).5                                                                         the 2002 SPCC rule. Commenters from
                                                                However, EPA believes that the
     A national estimate was extrapolated                                                                          the crop production, forestry/logging,
                                                             overall assessment of cost savings from
     from these data using the ratio of the                                                                        and utilities industries indicated they
                                                             this component of the rule may be
     megawatt hours sold by utilities to the                                                                       had motive power equipment. EPA
                                                             significantly underestimated. This is
     estimated total retail megawatt hours of                                                                      identified additional industry groups by
                                                             due to the omission of potential cost
     electricity sold nationwide according to                                                                      examining industries targeted by the
                                                             savings that would accrue to all other
     the EIA.                                                                                                      major motive power equipment
                                                             industries outside of electrical utilities.
        EPA estimated that the total number                                                                        manufacturers. Caterpillar, Deere &
     of new facilities with total oil-filled                 b. Compliance Cost Savings                            Company, Kubota Corporation, Joy
     operational equipment would be                             EPA estimates that this component of               Global Inc., CNH Global NV, and Terex
     approximately 2,040 in the first year.                  the proposal could reduce compliance                  Corporation are some of the largest
     Over the next ten years, approximately                  costs by as much as $56.7 million and                 motive power equipment
     2,450 new facilities are expected to be                 $45.9 million per year, discounted at 3               manufacturers. Each company lists the
     added annually on average. This                         percent and 7 percent, respectively. EPA              industries targeted by their products.
     number underestimates the universe of                   calculated cost savings based on the                  EPA used these listings as the basis for
     facilities affected by the proposed                     assumption that new facilities with                   classifying industries likely to have
     change, since it does not include oil-                  qualified oil-filled operational                      motive power containers.
     filled operational equipment from other                 equipment would save the difference                      EPA has no empirical data on the
     industries. Facilities with qualified oil-              between the cost of secondary                         number of facilities with motive power
     filled operational equipment are                        containment and the cost of preparing a               containers with oil storage of 55 gallons
     expected to use a contingency plan with                 contingency plan and a written                        or greater. To estimate the number of
     a written commitment of manpower,                       commitment of manpower, equipment                     facilities affected by the ‘‘Motive
     equipment and materials and have an                     and materials. EPA estimated annual                   Power’’ proposed rule, EPA examined
     established inspections/monitoring                      per-facility cost savings of $9,000 to                three scenarios: 10 percent, 25 percent,
     program.                                                $61,000 for new facilities, depending on              and 50 percent of the facilities in sectors
        EPA assumed that existing SPCC-                      a facility’s size and other characteristics.          with motive power may be affected by
     regulated facilities with qualified oil-                   The Agency recognizes, that at some                the proposed regulatory option. EPA
     filled operational equipment would                      facilities, owners or operators with PE-              estimated that 29,000 facilities have
     already have secondary containment or                   certified SPCC Plans have made a                      ‘‘motive power’’ oil storage under the
     a determination of impracticability of                  determination that secondary                          10-percent scenario; 71,600 facilities
     secondary containment with a                            containment is impracticable, and have                under the 25-percent scenario; and
     contingency plan and a written                          implemented contingency plans and a                   143,000 facilities under the 50-percent
     commitment of manpower, equipment                       written commitment of manpower,                       scenario.
     and materials in accordance with                        equipment and materials for the non-
                                                                                                                   b. Compliance Cost Savings
     § 112.7(d). In such cases, facilities                   qualified oil-filled operational
     would not benefit from this option. EPA                 equipment. Such facilities would not                     EPA assumed that ten percent of the
     has provided an economic impact                         see significant cost savings from this                facilities in industries identified as
     analysis (Appendix A to the Regulatory                  component of the current rule. The                    having motive power containers might
     Analysis), which examines avoided                       analysis of cost savings underestimate                take advantage of the proposed
     facility expenditures.                                  the number of facilities with qualified               exemption. Other facilities could also
                                                             oil-filled operational equipment, but                 have motive power containers, however
       5 Major regulated utilities must file FERC Form       overestimates the cost savings for                    EPA expects that they have not
     No. 1, on which utilities report information on their   facilities that have been counted.                    considered such storage as part of their
     substations and electrical equipment. ‘‘Major’’ is                                                            compliance with the SPCC rule. Because
     defined as having (1) one million megawatt hours        4. Motive Power                                       EPA expects most facilities with motive
     or more; (2) 100 megawatt hours of annual sales for
     resale; (3) 500 megawatt hours of annual power
                                                                It is not EPA’s intent to regulate                 power containers to meet the SPCC
     exchange delivered; or (4) 500 megawatt hours of        onboard bulk storage containers used                  rule’s oil storage thresholds, regardless
     annual wheeling for others (deliveries plus losses).    solely to power the movement of a                     of motive power, EPA assumes that the


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     73546                 Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     cost savings from the proposed                          with § 112.8(c)(2) and (11) for airport               NODAs published on September 20,
     exemption will be modest, with the                      mobile refuelers. Therefore, the                      2004. Following are summaries of the
     possibility of saving small amounts of                  estimated annual cost savings consist of              changes in compliance costs estimated
     compliance costs, principally for                       the potential expenditures avoided of                 for each alternative option (for qualified
     secondary containment for these motive                  providing secondary containment for                   facilities and qualified oil-filled
     power containers. EPA estimates that                    new airport mobile refuelers.                         operational equipment), as well as
     the proposed option will reduce                            The Agency estimated the total                     EPA’s rationale for rejecting the
     compliance costs by $0.92 million and                   number of new airports at 479 in the                  alternative option.
     $0.75 million per year, discounted at 3                 first year. Over the next ten years,
                                                                                                                   a. Qualified Facilities
     percent and 7 percent, respectively. The                approximately 535 new airports are
     main benefit of the proposed option                     expected to be added annually on                         As an alternative option, EPA
     would be to provide greater clarity of                  average. EPA assumed one to three                     considered a notification requirement
     EPA’s regulatory intent.                                mobile refuelers per airport,7 or                     for qualified facilities that have been
       EPA also examined two other                           approximately two per airport on                      operating for less than ten years, along
     scenarios: 25 percent and 50 percent of                 average. EPA estimates that this                      with eliminating the requirement for PE
     facilities in industries identified as                  component of the proposal could reduce                certification and providing flexibility for
     having motive power containers might                    compliance costs by $6.43 million and                 integrity testing and security for all
     take advantage of the proposed                          $5.23 million per year, discounted at 3               qualified facilities. EPA estimates that
     exemption. Under the 25-percent                         percent and 7 percent, respectively. The              the alternative option could reduce
     scenario, compliance costs would be                     derivation of these estimates is                      compliance costs by $22.3 million and
     reduced by $2.29 million and $1.87                      explained in Chapter 8 of the Regulatory              $18.4 million per year, discounted at 3
     million per year, discounted at 3                       Analysis.                                             percent and 7 percent, respectively. To
     percent and 7 percent, respectively.                                                                          arrive at these figures, EPA assumed
                                                             6. Projected Impacts on Human Health,                 that 50 percent of facilities under 10,000
     Under the 50-percent scenario,
                                                             Welfare, and the Environment                          gallons would qualify for this option.
     compliance costs would be reduced by
     $4.58 million and $3.74 million,                           The main benefit of the proposed rule              EPA also assumed that the proposed
     discounted at 3 percent and 7 percent,                  is lower compliance costs for certain                 flexibility for integrity testing would
     respectively.                                           types of facilities and equipment. EPA                reduce the unit cost of testing by 50
                                                             expects these reduced expenditures to                 percent. EPA assumed that the total
     5. Airport Mobile Refuelers                             translate to net social benefits. These               burden of notification for a facility
        EPA proposes to exempt airport                       benefits may be partially offset by                   would be three hours: one hour of
     mobile refuelers from the specifically                  potential increases in risk of oil                    managerial time, one hour of technical
     sized bulk storage secondary                            discharges, due to less stringent                     time, and one hour of clerical time. If 25
     containment requirements of                             requirements compared to the existing                 percent of facilities under 10,000
     § 112.8(c)(2) and (11). EPA defines an                  SPCC rule.                                            gallons qualified for this option,
     airport mobile refueler as a ‘‘vehicle                     However, EPA has designed the                      compliance costs would decrease by
     with an onboard bulk storage container                  proposed rule to minimize increases in                $11.2 million and $9.13 million per
     designed for, or used to, store and                     environmental risk. For example, EPA is               year, discounted at 3 percent and 7
     transport fuel for transfer into or from                providing an option to avoid                          percent, respectively. If 75 percent of
     aircraft or ground service equipment.’’                 Professional Engineer certification for               facilities under 10,000 gallons qualified
     The general secondary containment                       qualified facilities that have no history             for this option, compliance costs would
     requirements of § 112.7(c) would still                  of reportable discharges. Any decision                be reduced by $33.5 million and $27.4
     apply to these airport mobile refuelers                 to apply environmental equivalence or                 million per year, discounted at 3
     and to the transfers associated with this               pursue an impracticability                            percent and 7 percent, respectively. EPA
     equipment. Since airport mobile                         determination would still require PE                  decided not to pursue this option
     refuelers are mobile or portable bulk                   certification, except for security and                because it does not differ substantively
     storage containers, the other provisions                integrity testing. For the other relief               from the proposed option; an additional
     of § 112.8(c) would still apply.                        offered in the proposal, most facilities              notification burden was not considered
        The Agency researched regulatory                     will have general secondary                           necessary.
     compliance of airports with SPCC                        containment that would help prevent                      As an alternative option, EPA
     requirements for secondary                              discharges as described in § 112.1(b). In             considered establishing three facility-
     containment, and found that some                        summary, although the magnitude of                    size tiers according to SBA’s
     airports do not have sized secondary                                                                          recommendations based on facility’s
                                                             any increase in risk under each of the
     containment in place. EPA found that                                                                          total oil storage capacity (Jack Faucett
                                                             proposed options is unclear, EPA does
     secondary containment for mobile                                                                              Associates, 2004). EPA estimates that
                                                             not believe that these changes in spill
     refuelers is not a common practice and                                                                        this alternative option could reduce
                                                             risk are significant.
     that mobile refuelers rarely have a                        To the extent that lower compliance                compliance costs by $42.9 million and
     designated area to park. Factors such as                costs encourage greater overall                       $35.0 million per year, discounted at 3
     the land value at many commercial                       compliance, the proposed rule may                     percent and 7 percent, respectively. To
     airports prohibits a single, designated                 actually prevent discharges from                      arrive at these estimates, EPA assumed
     parking area for mobile refuelers.6 EPA                 currently non-compliant facilities that               that all SPCC-regulated facilities with
                                                             would occur in its absence.                           oil storage capacity between 1,320 and
     analyzed potential cost savings to the
                                                                                                                   5,000 gallons would take advantage of
     industry using an assumption that new
                                                             7. Alternative Regulatory Options                     the option, eliminating the cost of
     facilities would have to provide
                                                                EPA considered other options for                   preparing and maintaining a written
     secondary containment in accordance
                                                             addressing public comments to the                     SPCC Plan. Additionally, EPA assumed
       6 For detail, see ‘‘Results of Research Project on                                                          that all SPCC-regulated facilities with
     Airport Engineering and Construction Firms’’, Abt         7 Based on Federal Aviation Administration          oil storage capacity between 5,001 and
     Associates Inc. memorandum, 2004.                       estimates (http://www.faa.gov/data—statistics/).      10,000 gallons would take advantage of


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                           73547

     the option and eliminate the cost of PE                 this alternative option could reduce                     Approaches to compliance will
     certification.                                          compliance costs by $17.6 million and                 depend on site-specific circumstances.
        The cost savings associated with the                 $14.2 million per year, discounted at 3               For example, compliance costs vary not
     three-tier plans, however, come at the                  percent and 7 percent, respectively.                  only on the volume of oil stored and
     expense of losses in environmental                         EPA also considered two                            handled, but also on the types of oil at
     protection. Although EPA agrees that a                  administrative options to provide relief              a site, the number of tanks (and their
     reduction in burden may be appropriate                  to oil-filled operational equipment: a                volume), and the locations of the tanks
     for facilities handling smaller quantities              compliance date extension and a                       across a site. Given the wide range of
     of oils, smaller facilities still pose risks            suspension of all requirements. These                 industries and facility sizes affected by
     to the environment given the nature of                  options would not have an impact on                   the SPCC rule—as well as geographical
     the product. Therefore, some type of                    compliance costs, but would only delay                and climatic conditions—it is difficult
     Plan or documentation is warranted                      expenditures at affected facilities. EPA              to specify a realistic baseline against
     even for these smaller facilities. The                  decided against these options because                 which regulatory changes can be
     tiered option also raises significant                   facility owners or operators would                    measured. Therefore, it is also difficult
     implementation issues. For example,                     remain uncertain about the timing and                 to estimate the changes that could occur
     certain facilities would require                        nature of requirements that eventually                under various regulatory options.
     compliance with the SPCC rule without                   would apply to them. Since many                          Finally, many of the cost assumptions
     a written SPCC Plan. EPA believes that                  facilities have oil-filled operational                used in the regulatory analysis are based
     a facility would not be able to properly                equipment, delaying changes to these                  on interviews with a limited number of
     implement oil spill prevention                          requirements could lead to a significant              PEs. It is very difficult to simply assess
     measures—including notification,                        number of facilities needing to modify                ‘‘typical’’ costs when the costs of
     equipment maintenance, inspection and                   their existing Plans more than once to                compliance are closely related to site-
     training—without written                                accommodate future rule changes. A                    specific factors. Ideally, future analyses
     documentation to inform the owner or                    suspension would increase the risk of
                                                                                                                   could explicitly account for such
     operator of his/her responsibilities.                                                                         variability in costs.
                                                             discharge at facilities with qualified oil-
     Additionally, EPA inspectors
                                                             filled operational equipment during the               9. Conclusions
     conducting on-site visits would have no
                                                             interim period, due to the delayed                       Applying both a 3 percent and a 7
     written Plan or documentation to assess
                                                             implementation of preventive measures.                percent discount rate, the proposed
     the facility’s effectiveness in
     implementing their spill prevention                     8. Key Limitations of the Analysis                    regulatory changes could yield
     strategy. Even with model plans, owners                                                                       compliance cost savings of $22.5
     or operators of larger facilities may not                 One of the main limitations of the                  million and $18.4 million for the
     have the expertise to create their own                  regulatory analysis is EPA’s lack of data             ‘‘qualified facility’’ option; $56.7
     SPCC Plan without input from a PE.                      on facilities regulated under the SPCC                million and $45.9 million for the
        EPA also considered two additional                   rule. As mentioned earlier, the rule does             ‘‘qualified oil-filled operational
     options to provide relief to qualified                  not include (and never included) a                    equipment’’ option; $0.92 million and
     facilities: a compliance date extension                 notification requirement and, with                    $0.75 million for ‘‘motive power’’
     and a suspension of all requirements.                   certain exceptions, regulated entities do             exemption; and $6.43 million and $5.23
     These options would not have an                         not need to submit their SPCC Plans to                million for airports with mobile
     impact on compliance costs, but would                   EPA. Without conducting a statistically               refuelers, respectively. Costs of these
     only delay expenditures at affected                     valid survey, EPA is limited to data                  components are not summed, since
     facilities. EPA decided against these                   already collected by state or federal                 simple addition would overstate cost
     options because owners or operators of                  agencies or by proprietary sources. Such              savings by not accounting for
     qualified facilities would remain                       data are collected for diverse purposes               interactions between the impacts of the
     uncertain about the timing and type of                  and are not necessarily ideal for                     different components. EPA does not
     future requirements that would apply to                 evaluating regulatory options, because                believe that these cost reductions would
     them. The preferred option would set                    they often omit portions of the regulated             be offset by any significant losses in
     forth explicit requirements for qualified               universe or lack sufficient detail to                 environmental protection.
     facilities that reduce compliance costs                 ascertain the impacts of changes in
     within the current compliance date                      certain requirements. The type of                     B. Paperwork Reduction Act
     schedule. The extension/suspension                      information collected also varies among                 The information collection
     options also would pose additional                      the different sources. Data provided by               requirements in this proposed rule have
     problems related to implementation and                  industry organizations or individual                  been submitted for approval to the
     environmental protection.                               businesses are often anecdotal or based               Office of Management and Budget
                                                             on surveys that are not statistically                 (OMB) under the Paperwork Reduction
     b. Oil-Filled Equipment                                 valid, and cannot be reliably                         Act, 44 U.S.C. 3501 et seq. The
        EPA explored a three-tiered structure                extrapolated to a larger universe. As a               Information Collection Request (ICR)
     option in response to comments on the                   result of this limitation of data on                  document prepared by EPA has been
     Notice of Data Availability (NODA) for                  regulated facilities, EPA has had to rely             assigned EPA ICR number 0328.12.
     oil-filled operational equipment (69 FR                 on updated figures from 1996 for most                   EPA does not collect the information
     56184, September 20, 2004). The option                  industry sectors, as well as federal and              required by SPCC rule on a routine
     is based on a proposal put forth by the                 proprietary sources for a small number                basis. SPCC Plans ordinarily need not be
     Utility Solid Waste Activities Group                    of other sectors. Because none of these               submitted to EPA, but must generally be
     (USWAG). The option would allow an                      sources give adequate detail to evaluate              maintained at the facility. Preparation,
     owner or operator to define discrete                    the potential impacts of individual                   implementation, and maintenance of an
     units of equipment as individual                        regulatory options, EPA has chosen to                 SPCC Plan by the facility helps prevent
     facilities and reduce requirements                      examine various scenarios for each                    oil discharges, and mitigates the
     imposed on units with capacities less                   option to bound the range of cost                     environmental damage caused by such
     than 20,000 gallons. EPA estimates that                 savings that could occur.                             discharges. Therefore, the primary user


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     73548                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     of the data is the facility. While EPA                  percent average reduction. The                        comments on the information collection
     may, from time to time, request                         estimated average annual public                       requirements contained in this proposal.
     information under these regulations,                    reporting for individual facilities
                                                                                                                   C. Regulatory Flexibility Act
     such requests are not routine.                          already regulated under the SPCC rule
        Although the facility is the primary                 would range between 3.46 and 6.04                        The Regulatory Flexibility Act
     data user, EPA also uses the data in                    hours, while the burden for newly                     generally requires an agency to prepare
     certain situations. EPA reviews SPCC                    regulated facilities would range between              a regulatory flexibility analysis of any
     Plans: (1) When it requests a facility to               37.2 and 64.1 hours as a result of this               rule subject to notice and comment
     submit a Plan after certain oil discharges              proposal. The net annualized capital                  rulemaking requirements under the
     or to evaluate an extension request; and,               and start-up costs for the SPCC                       Administrative Procedure Act or any
     (2) as part of EPA’s inspection program.                information collection portion of the                 other statute unless the agency certifies
     State and local governments also use the                rule would average $0.32 million and                  that the rule will not have a significant
     data, which are not necessarily available               net annualized operation and                          economic impact on a substantial
     elsewhere and can greatly assist local                  maintenance (O&M) costs are estimated                 number of small entities. Small entities
     emergency preparedness efforts.                         to be $26 million for all of these                    include small businesses, small
     Preparation of the information for                      facilities combined.                                  organizations, and small governmental
     affected facilities is required under                      Burden means the total time, effort, or            jurisdictions. For purposes of assessing
     section 311(j)(1) of the Act as                         financial resources expended by persons               the impacts of today’s proposed rule on
     implemented by 40 CFR part 112.                         to generate, maintain, retain, or disclose            small entities, small entity is defined as:
        In the absence of this proposed                      or provide information to or for a                    (1) A small business as defined in the
     rulemaking, EPA estimates that                          Federal agency. This includes the time                SBA’s regulations at 13 CFR 121.201—
     approximately 618,000 facilities would                  needed to review instructions; develop,               the SBA defines small businesses by
     be subject to the SPCC rule in 2006 and                 acquire, install, and utilize technology              category of business using North
     have SPCC Plans. In addition, EPA                       and systems for the purposes of                       American Industry Classification
     estimates that approximately 4,520 new                  collecting, validating, and verifying                 System (NAICS) codes, and in the case
     facilities would become subject to SPCC                 information, processing and                           of farms and production facilities,
     requirements annually. In the absence of                maintaining information, and disclosing               which constitute a large percentage of
     this proposed rulemaking, EPA projects                  and providing information; adjust the                 the facilities affected by this proposed
     that the average annual public reporting                existing ways to comply with any                      rule, generally defines small businesses
     and recordkeeping burden for this                       previously applicable instructions and                as having less than $500,000 in
     information collection would be                         requirements; train personnel to be able              revenues or 500 employees,
     1,980,000 hours.                                        to respond to a collection of                         respectively; (2) a small governmental
        Under today’s proposed rulemaking,                   information; search data sources;                     jurisdiction that is a government of a
     qualified facilities would no longer need               complete and review the collection of                 city, county, town, school district or
     a licensed Professional Engineer to                     information; and transmit or otherwise                special district with a population of less
     certify their Plans. Facilities that store              disclose the information.                             than 50,000; and (3) a small
     oil solely in motive power containers                      An agency may not conduct or                       organization that is any not-for-profit
     would no longer be regulated, while                     sponsor, and a person is not required to              enterprise that is independently owned
     other facilities with oil storage in                    respond to a collection of information                and operated and is not dominant in its
     addition to motive power containers                     unless it displays a currently valid OMB              field.
     may incur lower compliance costs.                       control number. The OMB control                          After considering the economic
     Today’s proposal would also allow                       numbers for EPA’s regulations in 40                   impacts of today’s proposed rule on
     greater use of contingency plans and                    CFR are listed in 40 CFR part 9.                      small entities, the Agency certifies that
     written commitment of manpower,                            To comment on the Agency’s need for                this action would not have a significant
     equipment and resources without                         this information, the accuracy of the                 economic impact on a substantial
     requiring an impracticability                           burden estimates, and any suggested                   number of small entities. In determining
     determination when combined with an                     methods for minimizing respondent                     whether a rule has a significant
     inspection or monitoring program as an                  burden, including the use of automated                economic impact on a substantial
     alternative to secondary containment for                collection techniques, EPA has                        number of small entities, the impact of
     qualified oil-filled operational                        established a public docket for this rule,            concern is any significant adverse
     equipment. It would also allow airport                  which includes this ICR, under Docket                 economic impact on small entities,
     mobile refuelers to fall under a facility’s             ID number EPA–HQ–OPA–2005–0001.                       since the primary purpose of the
     general secondary containment                           Submit any comments related to the ICR                regulatory flexibility analyses is to
     requirements, rather than require                       for this proposed rule to EPA and OMB.                identify and address regulatory
     specifically sized secondary                            See ADDRESSES section at the beginning                alternatives ‘‘which minimize any
     containment.                                            of this notice for where to submit                    significant economic impact of the
        Under the proposed rule, an estimated                comments to EPA. Send comments to                     proposed rule on small entities.’’ 5
     372,000 regulated facilities would                      OMB at the Office of Information and                  U.S.C. 603 and 604. Thus, an agency
     annually be subject to the SPCC                         Regulatory Affairs, Office of                         may certify that a rule will not have a
     information collection requirements of                  Management and Budget, 725 17th                       significant economic impact on a
     this rule during the information                        Street, NW., Washington, DC 20503,                    substantial number of small entities if
     collection period. This figure excludes                 Attention: Desk Office for EPA. Since                 the rule relieves regulatory burden, or
     farms with oil storage capacity of 10,000               OMB is required to make a decision                    otherwise has a positive economic effect
     gallons or less, to reflect the proposed                concerning the ICR between 30 and 60                  on all of the small entities subject to the
     compliance extension. Under this                        days after December 12, 2005, a                       rule.
     proposed rule, the estimated annual                     comment to OMB is best assured of                        This proposed rule would reduce
     average burden over the next 3-year ICR                 having its full effect if OMB receives it             regulatory burden on qualified facilities
     period would be approximately                           by February 10, 2006. The final rule will             and qualified oil-filled operational
     1,490,000 hours, resulting in a 25                      respond to any OMB or public                          equipment. Qualified facilities would


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                           73549

     no longer need a licensed Professional                  effective or least burdensome alternative             States, on the relationship between the
     Engineer to certify their Plans. Facilities             that achieves the objectives of the rule.             national government and the States, or
     that store oil solely in motive power                   The provisions of section 205 do not                  on the distribution of power and
     containers would no longer be                           apply when they are inconsistent with                 responsibilities among the various
     regulated, while other facilities with oil              applicable law. Moreover, section 205                 levels of government, as specified in
     storage in addition to motive power                     allows EPA to adopt an alternative other              Executive Order 13132. Under CWA
     containers may incur lower compliance                   than the least costly, most-effective or              section 311(o), States may impose
     costs. Today’s proposal would also                      least burdensome alternative if the                   additional requirements, including more
     allow greater use of contingency plans                  Administrator publishes with the final                stringent requirements, relating to the
     and a written commitment of                             rule an explanation why that alternative              prevention of oil discharges to navigable
     manpower, equipment and materials                       was not adopted.                                      waters. EPA encourages States to
     without requiring an impracticability                      Before EPA establishes any regulatory              supplement the Federal SPCC program
     determination as an alternative to                      requirements that may significantly or                and recognizes that some States have
     secondary containment for qualified oil-                uniquely affect small governments,                    more stringent requirements. 56 FR
     filled operational equipment when                       including tribal governments, it must                 54612 (October 22, 1991). This proposed
     combined with an established and                        have developed under section 203 of                   rule would not preempt State law or
     documented inspection or monitoring                     UMRA a small government agency plan.                  regulations. Thus, Executive Order
     program. It would also allow airport                    The plan must provide for notifying                   13132 does not apply to this proposed
     mobile refuelers to fall under a facility’s             potentially affected small governments,               rule.
     general secondary containment                           enabling officials of affected small
                                                             governments to have meaningful and                    F. Executive Order 13175—Consultation
     requirements rather than require
                                                             timely input in the development of EPA                and Coordination With Indian Tribal
     specifically sized secondary
                                                             regulatory proposals with significant                 Governments
     containment. We have therefore
     concluded that today’s proposed rule                    Federal intergovernmental mandates,                      On November 6, 2000, the President
     would relieve regulatory burden for                     and informing, educating, and advising                issued Executive Order 13175 (65 FR
     small entities and welcome comments                     small governments on compliance with                  67249) entitled, ‘‘Consultation and
     on issues related to such impacts.                      the regulatory requirements. EPA has                  Coordination with Indian Tribal
        Overall, EPA estimates that today’s                  determined that this proposed rule does               Governments.’’ Executive Order 13175
     proposal would reduce annual                            not contain a Federal mandate that may                took effect on January 6, 2001, and
     compliance costs by $81 million (net                    result in expenditures of $100 million or             revokes Executive Order 13084 (Tribal
     present value) using nominal dollars                    more for State, local, and tribal                     Consultation) as of that date.
     and $98 million using annualized                        governments, in the aggregate, or the                    Today’s proposed rule would not
     values with constant dollars. Small                     private sector in any one year. Today’s               significantly or uniquely affect
     facilities, in particular, would benefit.               proposed rule would reduce burden and                 communities of Indian tribal
     For example, EPA estimates that the                     costs on affected facilities by                       governments. Therefore, we have not
     proposed rule would lower compliance                    approximately $81 million per year (net               consulted with a representative
     costs by $22.5 million and $18.4 million                present value) using nominal dollars                  organization of tribal groups.
     at 3 percent and 7 percent discount rate                and $98 million per year using                        G. Executive Order 13045—Protection of
     for facilities with less than 10,000                    annualized values with constant dollars.              Children From Environmental Health &
     gallons of oil storage capacity.                           EPA has determined that this                       Safety Risks
        After considering the economic                       proposed rule contains no regulatory
     impacts of today’s proposed rule on                     requirements that might significantly or                 Executive Order 13045, ‘‘Protection of
     small entities, I certify that this action              uniquely affect small governments. As                 Children from Environmental Health
     will not have a significant economic                    explained above, the effect of the                    Risks and Safety Risks’’ (62 FR 19885,
     impact on a substantial number of small                 proposed rule would be to reduce                      April 23, 1997), applies to any rule that:
     entities.                                               burden and costs for qualified regulated              (1) Is determined to be ‘‘economically
                                                             facilities, including certain small                   significant’’ as defined under Executive
     D. Unfunded Mandates Reform Act                                                                               Order 12866; and (2) concerns an
                                                             governments that are subject to the rule.
       Title II of the Unfunded Mandates                                                                           environmental health or safety risk that
     Reform Act of 1995 (UMRA), Public                       E. Executive Order 13132—Federalism                   EPA has reason to believe may have a
     Law 104–4, establishes requirements for                    Executive Order 13132, entitled                    disproportionate effect on children. If
     Federal agencies to assess the effects of               ‘‘Federalism’’ (64 FR 43255, August 10,               the regulatory action meets both criteria,
     their regulatory actions on State, local,               1999), requires EPA to develop an                     the Agency must evaluate the
     and tribal governments and the private                  accountable process to ensure                         environmental health or safety effects of
     sector. Under section 202 of UMRA,                      ‘‘meaningful and timely input by State                the planned rule on children, and
     EPA generally must prepare a written                    and local officials in the development of             explain why the planned regulation is
     statement, including a cost-benefit                     regulatory policies that have federalism              preferable to other potentially effective
     analysis, for proposed and final rules                  implications.’’ ‘‘Policies that have                  and reasonably feasible alternatives
     with ‘‘Federal mandates’’ that may                      federalism implications’’ is defined in               considered by the Agency. EPA
     result in expenditures to State, local,                 the Executive Order to include                        interprets Executive Order 13045 as
     and tribal governments, in the aggregate,               regulations that have ‘‘substantial direct            applying only to those regulatory
     or to the private sector, of $100 million               effects on the States, on the relationship            actions that are based on health or safety
     or more in any one year. Before                         between the national government and                   risks, such that the analysis required
     promulgating an EPA rule for which a                    the States, or on the distribution of                 under section 5–501 of the Order has
     written statement is needed, section 205                power and responsibilities among the                  the potential to influence the regulation.
     of UMRA generally requires EPA to                       various levels of government.’’                       This proposed rule is not subject to
     identify and consider a reasonable                         This proposed rule does not have                   Executive Order 13045 because the
     number of regulatory alternatives and                   federalism implications. It would not                 Agency does not have reason to believe
     adopt the least costly, most cost-                      have substantial direct effects on the                the environmental health or safety risks


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     73550                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     addressed by this action present a                      § 112.1   General applicability.                      include oil-filled manufacturing
     disproportionate risk to children.                      *       *    *     *     *                            equipment (flow-through process).
     H. Executive Order 13211—Actions                           (d) * * *                                          *     *     *     *    *
     That Significantly Affect Energy Supply,                   (2) * * *                                            4. Amend § 112.3 by designating the
     Distribution, or Use                                       (ii) The aggregate aboveground storage             existing text of paragraph (a) as (a)(1)
                                                             capacity of the facility is 1,320 gallons             and adding (a)(2), designating the
        This proposed rule is not a                                                                                existing text of paragraph (b) as (b)(1)
     ‘‘significant energy action’’ as defined in             or less of oil. For the purposes of this
                                                             exemption, only containers with a                     and adding (b)(2), revising the
     Executive Order 13211, ‘‘Actions                                                                              introductory text of paragraph (d), and
     Concerning Regulations That                             capacity of 55 gallons or greater are
                                                             counted. The aggregate aboveground                    adding paragraph (g) to read as follows:
     Significantly Affect Energy Supply,
     Distribution, or Use’’ (66 FR 28355, May                storage capacity of a facility excludes               § 112.3 Requirement to prepare and
     22, 2001) because it is not likely to have              the capacity of a container that is                   implement a Spill Prevention, Control, and
     a significant adverse effect on the                     ‘‘permanently closed,’’ or a ‘‘motive                 Countermeasure Plan.
     supply, distribution, or use of energy.                 power container’’ as defined in § 112.2.              *       *    *      *     *
                                                             *       *    *     *     *                               (a)(1) * * *
     I. National Technology Transfer and                                                                              (2) If your farm has a total oil storage
                                                                (7) Any ‘‘motive power container,’’ as
     Advancement Act                                                                                               capacity of 10,000 gallons or less, the
                                                             defined in § 112.2. The transfer of fuel
       Section 12(d) of the National                         or other oil into a motive power                      compliance dates described in
     Technology Transfer and Advancement                     container at an otherwise regulated                   paragraph (a)(1) of this section are
     Act of 1995 (‘‘NTTAA’’), Public Law                     facility is not subject to this exemption.            delayed indefinitely or until the Agency
     104–113, section 12(d) (15 U.S.C. 272                                                                         publishes a final rule in the Federal
                                                             *       *    *     *     *
     note) directs EPA to use voluntary                                                                            Register establishing a new compliance
                                                                3. Amend § 112.2 by adding                         date.
     consensus standards in its regulatory
                                                             definitions for ‘‘Airport mobile                         (b)(1) * * *
     activities unless to do so would be
                                                             refueler’’, ‘‘Farm’’, ‘‘Motive power                     (2) If your farm has a total oil storage
     inconsistent with applicable law or
                                                             container’’, and ‘‘Oil-filled operational             capacity of 10,000 gallons or less, the
     otherwise impractical. Voluntary
                                                             equipment’’ in alphabetical order to                  compliance dates described in
     consensus standards are technical
                                                             read as follows:                                      paragraph (b)(1) of this section are
     standards such as materials
     specifications, test methods, sampling                  § 112.2   Definitions.
                                                                                                                   delayed indefinitely or until the Agency
     procedures, and business practices that                                                                       publishes a final rule in the Federal
                                                             *     *      *     *     *                            Register establishing a new compliance
     are developed or adopted by voluntary                      Airport mobile refueler means a
     consensus standards bodies. The                                                                               date.
                                                             vehicle with an onboard bulk storage                  *       *    *      *     *
     NTTAA directs EPA to provide                            container designed, or used to store and
     Congress, through OMB, explanations                                                                              (d) Except as provided in paragraph
                                                             transport fuel for transfer into or from              (g) of this section, a licensed
     when the Agency decides not to use                      aircraft or ground service equipment.
     available and applicable voluntary                                                                            Professional Engineer must review and
     consensus standards.                                    *     *      *     *     *                            certify a Plan for it to be effective to
       This proposed rule does not involve                      Farm means a facility on a tract of                satisfy the requirements of this part.
     technical standards. Therefore, NTTAA                   land devoted to the production of crops               *       *    *      *     *
     does not apply.                                         or raising of animals, including fish,                   (g) Qualified Facilities. The owner or
                                                             which produced and sold, or normally                  operator of a facility that meets the
     List of Subjects in 40 CFR Part 112                     would have produced and sold, $1,000                  qualification criteria in paragraph (g)(1)
       Environmental protection, Oil                         or more of agricultural products during               of this section may choose to self-certify
     pollution, Penalties, Petroleum,                        a year.                                               the facility’s SPCC Plan and any
     Reporting and recordkeeping                             *     *      *     *     *                            technical amendments to the Plan in
     requirements.                                              Motive power container means any                   lieu of certification by a licensed
       Dated: December 2, 2005.                              onboard bulk storage containers used                  Professional Engineer.
     Stephen L. Johnson,                                     solely to power the movement of a                        (1) Qualification Criteria. A facility is
                                                             motor vehicle, or ancillary onboard oil-              qualified for owner or operator self-
     Administrator.
                                                             filled operational equipment used solely              certification of its SPCC Plan if it meets
       For the reasons stated in the                                                                               the following criteria:
                                                             to facilitate its operation. An onboard
     preamble, the Environmental Protection                                                                           (i) The aggregate aboveground storage
                                                             bulk storage container which is used to
     Agency proposes to amend 40 CFR part                                                                          capacity of the facility, as determined
                                                             store or transfer oil for further
     112 as follows:                                                                                               according to § 112.1, is 10,000 gallons or
                                                             distribution is not a motive power
                                                             container. The definition of motive                   less; and
     PART 112—OIL POLLUTION                                                                                           (ii) The facility either:
     PREVENTION                                              power equipment does not include oil
                                                                                                                      (A) Has been in operation for at least
                                                             drilling or workover equipment,
       1. The authority citation for part 112                                                                      ten years immediately prior to the date
                                                             including rigs.
     continues to read as follows:                                                                                 of self-certification and in the ten-year
                                                             *     *      *     *     *                            period immediately prior to self-
       Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C.             Oil-filled operational equipment                   certification had no discharges as
     2720; and E.O. 12777 (October 18, 1991), 3              means equipment which includes an oil                 described in § 112.1(b); or
     CFR, 1991 Comp., p. 351.                                storage container (or multiple                           (B) Is beginning operations or has
     Subpart A [Amended]                                     containers) in which the oil is present               been in operation for fewer than ten
                                                             solely to support the function of the                 years without any discharges of oil as
       2. Amend § 112.1 by revising                          apparatus or the device. Oil-filled                   described in § 112.1(b).
     paragraph (d)(2)(ii) and adding                         operational equipment is not considered                  (2) Self-Certification. If you are the
     paragraph (d)(7) to read as follows:                    a bulk storage container, and does not                owner or operator of a qualified facility


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                          Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules                                           73551

     and you choose to self-certify your Plan                must determine, in accordance with                    requirements in paragraph (c) and (h)(1)
     or technical amendments to your Plan,                   industry standards, the appropriate                   of this section, and §§ 112.8(c)(2),
     you must certify in the Plan that:                      inspector/testing personnel                           112.8(c)(11), 112.9(c)(2), 112.10(c),
       (i) You are familiar with the                         qualifications, the frequency and type of             112.12(c)(2), and 112.12(c)(11), you
     requirements of this part;                              testing/inspections which take into                   must state the reasons for
       (ii) You or your agent have visited and               account container size, configuration,                nonconformance in your Plan and
     examined the facility;                                  and design (such as containers that are:              describe in detail alternate methods and
       (iii) The Plan has been prepared in                   equipped with a floating roof, shop                   how you will achieve equivalent
     accordance with accepted and sound                      built, field erected, skid-mounted,                   environmental protection. If the
     industry practices and standards, and                   elevated, equipped with a liner, double               Regional Administrator determines that
     with the requirements of this part;                     walled, or partially buried). Examples of             the measures described in your Plan do
       (iv) Procedures for required                          these integrity tests include, but are not            not provide equivalent environmental
     inspections and testing have been                       limited to: visual inspection, hydrostatic            protection, he may require that you
     established;                                            testing, radiographic testing, ultrasonic             amend your Plan, following the
       (v) The Plan is being fully                           testing, acoustic emissions testing, or               procedures in § 112.4(d) and (e).
     implemented;                                            other systems of non-destructive testing.             *      *     *     *     *
       (vi) The facility meets the                           You must keep comparison records and                     (c) Provide appropriate containment
     qualification criteria set forth under                  you must also inspect the container’s                 and/or diversionary structures or
     § 112.3(g)(1);                                          supports and foundations. In addition,                equipment to prevent a discharge as
       (vii) The Plan does not utilize the                   you must frequently inspect the outside               described in § 112.1(b), except as
     environmental equivalence and                           of the container for signs of                         provided in paragraph (k) of this section
     impracticability provisions under                       deterioration, discharges, or                         for qualified oil-filled operational
     § 112.7(a)(2) and 112.7(d), except as                   accumulation of oil inside diked areas.               equipment. The entire containment
     described in paragraph (g)(3) of this                   Records of inspections and tests kept                 system, including walls and floor, must
     section; and                                            under usual and customary business                    be capable of containing oil and must be
       (viii) The Plan and individual(s)                     practices satisfy the recordkeeping                   constructed so that any discharge from
     responsible for implementing the Plan                   requirements of this paragraph.                       a primary containment system, such as
     have the full approval of management                      5. Amend § 112.5 by revising                        a tank or pipe, will not escape the
     and the facility has committed the                      paragraph (c) to read as follows:                     containment system before cleanup
     necessary resources to fully implement
                                                                                                                   occurs. At a minimum, you must use
     the Plan.                                               § 112.5 Amendment of Spill Prevention,
       (3) Self-Certified Plan Exceptions.                   Control, and Countermeasure Plan by
                                                                                                                   one of the following prevention systems
     Except as provided in this                              owners or operators.                                  or its equivalent:
     subparagraph, a self-certified SPCC Plan                *     *    *     *      *                             *      *     *     *     *
     must comply with § 112.7 and the                          (c) Except as provided in § 112.3(g),                  (d) Provided your Plan is certified by
     applicable requirements in subparts B                   have a Professional Engineer certify any              a licensed Professional Engineer under
     and C of this part:                                     technical amendments to your Plan in                  § 112.3(d), if you determine that the
       (i) Environmental Equivalence. The                    accordance with § 112.3(d).                           installation of any of the structures or
     Plan may not include alternate methods                    6. Amend § 112.7 by revising                        pieces of equipment listed in paragraphs
     to the applicable requirements listed in                paragraph (a)(2), (c) introductory text,              (c) and (h)(1) of this section, and
     § 112.7(a)(2).                                          (d) introductory text, and adding                     §§ 112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
       (ii) Impracticability. The Plan may not               paragraph (k) to read as follows:                     112.10(c), 112.12(c)(2) and 112.12(c)(11)
     include any impracticability                                                                                  to prevent a discharge as described in
     determinations as described under                       § 112.7 General requirements for Spill                § 112.1(b) from any onshore or offshore
     § 112.7(d).                                             Prevention, Control, and Countermeasure               facility is not practicable, you must
       (iii) Security (excluding oil                         Plans.                                                clearly explain in your Plan why such
     production facilities). The owner or                    *     *     *      *     *                            measures are not practicable; for bulk
     operator must choose to either:                           (a) * * *                                           storage containers, conduct both
       (A) Comply with the requirements                        (2) Comply with all applicable                      periodic integrity testing of the
     under § 112.7(g); or                                    requirements listed in this part. Except              containers and periodic integrity and
       (B) Prepare a security plan that                      as provided in § 112.3(g), your Plan may              leak testing of the valves and piping;
     describes how the facility controls                     deviate from the requirements in                      and, unless you have submitted a
     access to the oil handling, processing                  paragraphs (g), (h)(2) and (3), and (i) of            response plan under § 112.20, provide
     and storage areas; secures master flow                  this section and the requirements in                  in your Plan the following:
     and drain valves; prevents unauthorized                 subparts B and C of this part, except the             *      *     *     *     *
     access to starter controls on oil pumps;                secondary containment requirements in                    (k) Qualified Oil-Filled Operational
     secures out-of-service and loading/                     paragraphs (c) and (h)(1) of this section,            Equipment. The owner or operator of a
     unloading connections of oil pipelines;                 and §§ 112.8(c)(2), 112.8(c)(11),                     facility with oil-filled operational
     addresses the appropriateness of                        112.9(c)(2), 112.10(c), 112.12(c)(2), and             equipment that meets the qualification
     security lighting to both prevent acts of               112.12(c)(11), where applicable to a                  criteria in paragraph (k)(1) of this
     vandalism and assist in the discovery of                specific facility, if you provide                     section may choose to implement for
     oil discharges.                                         equivalent environmental protection by                this qualified oil-filled operational
       (iv) Bulk Storage Container                           some other means of spill prevention,                 equipment the alternate requirements as
     Inspections. In lieu of the requirements                control, or countermeasure. Where your                described in paragraph (k)(2) of this
     in §§ 112.8(c)(6) and 112.12(c)(6), an                  Plan does not conform to the applicable               section in lieu of applying the general
     owner/operator must test/inspect each                   requirements in paragraphs (g), (h)(2)                secondary containment requirements of
     aboveground container for integrity on a                and (3), and (i) of this section, or the              paragraph (c) of this section.
     regular schedule and whenever material                  requirements of subparts B and C of this                 (1) Qualification Criteria—Reportable
     repairs are made. The owner or operator                 part, except the secondary containment                Discharge History: The facility where


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     73552                Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules

     the oil-filled operational equipment is                 remove any quantity of oil discharged                   (11) Position or locate mobile or
     located either:                                         that may be harmful.                                  portable oil storage containers to
        (i) Has been in operation for at least                                                                     prevent a discharge as described in
     ten years immediately prior to the date                 Subpart B—[Amended]                                   § 112.1(b). Except in the cases of airport
     of Plan certification and in the ten-year                 7. Amend § 112.8 by revising                        mobile refuelers, you must furnish a
     period immediately prior to the Plan                    paragraphs (c)(2) and (c)(11) to read as              secondary means of containment, such
     certification date had no discharges as                 follows:                                              as a dike or catchment basin, sufficient
     described in § 112.1(b) from any oil-                                                                         to contain the capacity of the largest
     filled operational equipment, or                        § 112.8 Spill Prevention, Control, and                single compartment or container with
        (ii) Is beginning operations or has                  Countermeasure Plan requirements for                  sufficient freeboard to contain
     been in operation for fewer than ten                    onshore facilities (excluding production              precipitation.
     years without any discharges as                         facilities).
                                                                                                                   *     *     *     *    *
     described in § 112.1(b) from any oil-                   *     *     *     *     *
     filled operational equipment;                             (c) * * *                                           Subpart C—[Amended]
        (2) Alternative Requirements to                        (2) Construct all bulk storage tank
     General Secondary Containment. The                      installations (except airport mobile                  § 112.12 Specific Spill Prevention, Control,
     owner or operator of a facility with                    refuelers) so that you provide a                      and Countermeasure Plan requirements.
     qualified oil-filled operational                        secondary means of containment for the                  8. Amend § 112.12 by revising the
     equipment must:                                         entire capacity of the largest single
                                                                                                                   section heading to read as set forth
        (i) Establish and document the facility              container and sufficient freeboard to
                                                                                                                   above.
     procedures for inspections or a                         contain precipitation. You must ensure
     monitoring program to detect equipment                  that diked areas are sufficiently                     § 112.13   [Removed and Reserved]
     failure and/or a discharge; and                         impervious to contain discharged oil.
                                                             Dikes, containment curbs, and pits are                   9. Remove and reserve § 112.13.
        (ii) Unless you have submitted a
     response plan under § 112.20, provide                   commonly employed for this purpose.                   § 112.14   [Removed and Reserved]
     in your Plan the following:                             You may also use an alternative system
                                                             consisting of a drainage trench                          10. Remove and reserve § 112.14.
        (A) An oil spill contingency plan
     following the provisions of part 109 of                 enclosure that must be arranged so that               § 112.15   [Removed and Reserved]
     this chapter.                                           any discharge will terminate and be
                                                             safely confined in a facility catchment                  11. Remove and reserve § 112.15.
        (B) A written commitment of
     manpower, equipment, and materials                      basin or holding pond.                                [FR Doc. 05–23917 Filed 12–9–05; 8:45 am]
     required to expeditiously control and                   *     *     *     *     *                             BILLING CODE 6560–50–P




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