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The spill prevention, control and countermeasures (SPCC) rule constitutes a major tool in the Environmental Protection Agency’s pollution-prevention toolbox. Initially promulgated pursuant to Section 311(j)(1)(C) of the Clean Water Act (CWA), the rule established a program to prevent and contain discharges of oil from certain non-transportation related facilities, including those with aboveground storage capacity of greater than 1,320 gallons of oil. The Oil Pollution Act of 1990 expanded the EPA’s authority by, among other things, requiring certain facilities to prepare and submit Facility Response Plans adding worst-case discharges of oil. For environmental practitioners, the basic requirements of the current SPCC rule are familiar. Covered facilities that have the capacity to store more than 1,320 gallons of oil above ground or 42,000 gallons below ground are required to install and maintain secondary containment around tanks and other containers of oil of 55 gallons or more to prevent any spill from escaping beyond the containment barrier. The rule also requires inspections and integrity testing of bulk storage containers, fencing and other security measures, evaluation of the potential for catastrophic tank failure due to brittle fracture, overfill prevention and other performance measures detailed in 40 CFR part 112. The SPCC rule also requires the owner or operator of a facility to submit a certification from a registered professional engineer stating that the SPCC plans and any modifications to those plans have been prepared in accordance with good engineering practices. A useful resource for understanding the SPCC rule is the SPCC guidance for regional inspectors, www.epa.gov/oilspill/guidance.htm. SPCC plans and the preventative and response measures taken pursuant to these plans have been effective in meeting their goal of reducing discharges of oil to navigable waters or adjoining shorelines in quantities that may be harmful. The tank integrity testing and the procedures designed to prevent spills from occurring encourage facilities to remain vigilant when handling large quantities of oil. The secondary containment areas have in many instances proven effective in preventing spills from reaching waterways. SPCC requirements, however, come at expense to the owner or operator. Several business sectors such as agricultural operations have contended that the effects of various SPCC requirements, including the costs of retaining a registered professional engineer to certify the plans, erect barriers that inhibit compliance. On Dec. 12, the EPA announced final amendments to the SPCC rule designed to eliminate some of the burdens that the rule places on the regulated community. The amendments simplify the rule’s requirements for various categories of facilities and extend certain compliance dates. For those facilities covered by the amendments, the changes may provide greater simplicity and flexibility, resulting in significant financial savings. Qualified Facilities The most significant change to the SPCC rule in the 2006 amendments is the establishment of a category of “qualified facilities” that no longer must obtain the certification of a professional engineer. A qualified facility now has the option to self-certify that the facility’s plan satisfies the SPCC rule. A qualified facility is defined as one that has an aggregate oil storage capacity of 10,000 gallons or less; and had no single discharge exceeding 1,000 gallons or no two discharges each exceeding 42 gallons within any twelve month period in the three years prior to the self-certification date. In general, only that quantity of oil that actually reaches the waters of the United States or adjoining shorelines is counted, and not the total amount of oil spilled. The EPA also exempted those reportable discharges caused by natural disasters or acts of war or terrorism on the ground that they constitute external factors beyond the control of the facility. In addition, discharges that occur from a qualified facility after the SPCC plan has been certified do not impact the eligibility of an owner or operator. In providing additional flexibility to qualified facilities, the EPA faced the difficult task of determining the applicability of the equivalency and impracticability provisions of Section 112.7 of the SPCC rule. Section 112.7(a)(2) allows facility owners and operators to deviate from the security integrity testing and other specific requirements of Section 112.7(a) if equivalent environmental protection is provided. Likewise, pursuant to Section 112.7(d), where implementation of secondary containment requirements is impracticable, the facility owner or operator may substitute a contingency plan and meet other requirements such as periodic integrity testing of containers, values and piping. The equivalent measures or measures implemented in lieu of impracticable secondary containment must be certified by a professional engineer. During the comment period on the amendments to the SPCC rule, some commentators suggested to the EPA that even though qualified facilities would be allowed to self-certify, the equivalency and impracticability provisions should continue to require certification by a professional engineer. Other commentators asserted that small facilities need the flexibility that these mechanisms provide. The EPA adopted a hybrid approach. The amendments establish alternatives that a qualified facility may utilize for addressing security measures and integrity testing. An owner or operator may not self-certify alternative methods that neither provide environmental equivalence nor issue a determination that secondary containment is impracticable. A qualified facility that is otherwise self-certifying may, however, retain a professional engineer to certify environmentally equivalent measures and to make impracticability determinations and review alternative measures to be employed. The “qualified facility” amendments recognize that smaller facilities usually present less risk to waterways from spills and releases than do larger facilities. The EPA notes that qualified facilities are typically simpler in layout and operation. End-consumers of oil such as farms and real estate operations use oil on-site for heating purposes or emergency power. They commonly store oil in a few bulk storage containers that are connected with few short lengths of piping in a standard configuration. The EPA states that these facilities do not ordinarily make significant transfers of oil because they usually do not further distribute the oil that is located onsite. The EPA performed a statistical analysis that demonstrated that facilities with less storage capacity and fewer tanks have lower number, volume and cleanup costs of oil spills. The EPA also concluded that reducing the cost of environmental compliance for facilities handling smaller amounts of oil would result in increased environmental protection. The EPA acknowledges that the more burdensome an environmental regulation, the less likely the regulated entity is to comply with the regulation. Consequently, by reducing the burden of compliance, the SPCC amendments may foster a higher incidence of compliance than would imposing mandatory requirements. Strikingly, if the EPA applies this rationale broadly, many regulations may be ripe for reanalysis. Other Changes to SPCC The SPCC amendments incorporate a few additional changes of note. If a facility has oil-filled operational equipment and meets specified oil discharge history criteria, then the owner or operator of the facility may elect an alternative to the general secondary containment requirements. In particular, it may implement an inspection and monitoring program, develop an oil spill contingency plan and provide a written commitment of resources to control and remove oil discharged. The amendments also exempt motive power containers from the purview of the SPCC regulations. These containers are onboard bulk-storage containers used to power motor vehicles. Similarly, mobile refuelers that store fuel for transfer from aircraft, motor vehicles or similar equipment are exempted from specific secondary containment requirements. In addition, certain SPCC provisions no longer apply to animal fats and vegetable oils, but continue to apply to other types of oils. The EPA also extended the compliance dates by which farms starting operation on or before Aug. 16, 2002, must amend or implement SPCC plans and by which farms starting operation after Aug. 16,2002, must prepare and implement SPCC plans. The SPCC amendments constitute a step toward making the SPCC rule more flexible and practical for various types of facilities. Further refinements may be expected in the future as the EPA continues to examine the effectiveness of the rule and the benefits of relaxing requirements for facilities not likely to pose a significant threat of release of oil to waterways. KENNETH J. WARRENis a partner at WolfBlock Schorr & Solis-Cohen and chairman ofits environmental practicegroup. He is a past chairmanof the American BarAssociation section ofenvironment, energy andresources.

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