EPA Seeks To Delay New Oil Spill Requirements; Agency Issues Rule Clarifications
Contractors can expect the U.S. Environmental Protection Agency (EPA) to push back the deadline for preparing and implementing oil spill plans in accordance with the agency’s new and more stringent oil storage and clean up requirements. Contractors also can take advantage of the regulatory relief provided by EPA’s “clarifications” to certain aspects of the 2002 amendments.
Responding to requests by AGC and others, EPA has proposed a one-year extension of the dates by which companies must comply with the agency’s 2002 Spill Prevention Control and Countermeasure (SPCC) amendments. EPA’s proposal would give contractors until February 18, 2006 to prepare (or revise) and implement new oil spill plans to comply with the amendments. (Construction sites that broke ground on or before August 16, 2002 must follow a more aggressive timeline.) EPA is not anticipating opposition to this extension and expects to finalize the rule by early July.
In many ways, the 2002 SPCC amendments increased the universe of construction sites covered by the rule as well as the regulatory burden on contractors who are charged with meeting the SPCC requirements (e.g., new requirements for integrity and leak-testing, security and lighting, and PE-certifications). Without this extension, by February 18, 2005 at the latest, all site-specific SPCC plans must incorporate the new and more stringent procedures to prevent any discharge of oil to U.S. waters.
Clarification of Controversial Rule Provisions
Contractors also can take advantage of the regulatory relief provided by EPA’s “clarifications” to certain aspects of the 2002 amendments. EPA included these clarifications in a settlement agreement that brings closure to legal challenges brought by petroleum groups on several issues of concern to construction:
- Scope of “loading and unloading rack” requirements, including secondary containment;
- Role of cost in determining whether or not secondary containment is practicable; and
- Means of providing “equivalent environmental protection” of integrity testing and security requirements.
Still unresolved in the petroleum industry lawsuit, however, is how EPA defines “waters of the United States.” The American Petroleum Institute recently asked the U.S. District Court for D.C. to strike down EPA’s definition on the grounds that it is too broad and ignores important court decisions on the scope of federal jurisdiction over waters and wetlands.
Current Status and Resolution of Remaining Contractor Concerns
Your existing or new jobsite is now covered by SPCC if the total capacity of your oil storage containers in tanks of 55 gallons or more—including fuel and hydraulic fluid tanks on your equipment—is more than 1,320 gallons and a spill could reach a U.S. water. You need a site-specific plan designed to prevent any discharge of oil to U.S. waters. You can take advantage of all of the regulatory relief provided for by the 2002 SPCC amendments (e.g., prior to the 2002 SPCC amendments, even one aboveground storage tank of 660 gallons or more capacity caused a site to be subject to the SPCC rule even if its total storage capacity was less than 1,320 gallons) and the “clarifications” developed during the course of the settlement proceeding. It’s your choice whether or not to incorporate the more stringent 2002 requirements into your SPCC plan in advance of the compliance date.
Many of AGC’s remaining concerns with SPCC program can be resolved only by promulgating a new regulation. AGC has been working closely with EPA and the U.S. Small Business Administration (SBA) to reform the parts of the SPCC rule that are difficult and costly to comply with and, as a result, impede environmental performance on construction jobsites. SBA recently sent a letter to EPA recommending that the agency take “additional action to alleviate significant and unnecessary regulatory burdens” on the construction companies and other small businesses. In support of AGC’s top reform priorities, SBA recommended that EPA issue an interim final rule to provide immediate regulatory relief for: (1) small facilities, (2) motive power and oil-filled equipment, and (3) asphalt cement and hot-mix asphalt.
Additional information on the proposed extension of the SPCC compliance deadlines and the partially settled litigation over the SPCC rule is available online at http://www.epa.gov/oilspill. A copy of SBA’s comments is online at http://www.sba.gov/advo/laws/comments.
To find out more, contact Leah Wood at (703) 837-5332 or firstname.lastname@example.org.
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