December 29, 2006 / Issue No. 3-06
 
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Editor's Note
2006 – Year in Review
Air
Construction Equipment Targeted as Major Source of Air Pollution; Focus of Emissions Reduction Mandate
Water
EPA Amends Oil Spill Rule; Plans for New Compliance Deadlines
How to Meet Federal Oil Spill Reporting Requirements; A Step-by-Step Guide
AGC Comments on Corps of Engineers’ Proposal to Reissue, Revise Nationwide Permits
Waste
AGC Highlights Online Resources for Construction and Demolition Debris Recycling
Green Construction
AGC Attends Greenbuild; Reports on USGBC Initiatives
Environmental Solutions
EMS for Highway Construction – A Texas Success Story
News & Events
Submit Your Top 10 Green Construction Questions; Get the Answers at the AGC Convention
AGC Launches New Electronic Discussion Group on Environmental Management Systems
AGC-EPA Interface
Building Green

  EPA Amends Oil Spill Rule; Plans for New Compliance Deadlines

The U.S. Environmental Protection Agency (EPA) has amended the Spill Prevention Control and Countermeasure (SPCC) rule to streamline the federal requirements for owners and operators of certain regulated construction sites and to exempt mobile construction equipment from the rule.  To provide industry time to implement these modifications, and to allow EPA time to finalize additional rule changes, the agency has proposed a separate rule to extend the deadlines for complying with the regulation.

The new SPCC rule amendments take effect on February 26, 2007, and revise the Oil Pollution Prevention regulation at 40 CFR Part 112 (71 FR 77266, Dec. 26).  EPA also announced plans to further extend the compliance dates for preparing and implementing an SPCC plan that meets the current requirements.  Industry compliance with the oil spill rule has been repeatedly delayed amid concerns from AGC and others that the program is onerous.

The SPCC amendments directly address many of AGC’s major complaints about the agency’s oil spill program and reflect AGC’s recommendations for making the program more workable for contractors.  The final rule allows owners/operators of certain “qualified facilities” (like construction sites with aboveground oil storage capacities of 10,000 gallons or less) to “self-certify” SPCC plans rather than hiring a professional engineer (PE).  EPA has also exempted from the rule the fuel and fluid tanks used to power the movement of construction equipment.

Other rule amendments include:

  • An alternative to the general secondary containment requirement for qualified oil-filled operational equipment.
  • Exemption of mobile refuelers from the sized secondary containment requirements for bulk storage containers.

Who Is Regulated by the SPCC Rule?

Right now, EPA’s SPCC rules cover your jobsite if (1) your aboveground oil storage containers (in tanks of 55 gallons or greater, including asphalt cement tanks) have a total capacity of more than 1,320 gallons and (2) a spill could reach U.S. waters.  

The following are exempt from the rule:

  • Completely buried storage tanks subject to all the technical requirements of the underground storage tank regulations 
  • Containers with an oil  storage capacity of less than 55 gallons 
  • Wastewater treatment facilities 
  • Permanently closed containers 
  • Motive power containers (see below)

Self-Certification for Qualified Facilities

The revised rule allows owners/operators of regulated construction sites that have aboveground oil storage capacities of 10,000 gallons or less and that meet EPA’s oil discharge history criteria to self-certify their SPCC plans in lieu of review and certification by a Professional Engineer (PE).  Sites that qualify for this streamlined requirement are called “qualified facilities.”  The rule also provides qualified facilities with some flexibility in meeting security and tank integrity testing requirements by providing alternative “environmentally equivalent” measures that do not need PE review and approval.  In addition, qualified facility owners/operators may prepare a “combo” SPCC plan that includes other deviations, but those portions of the plan (i.e., environmentally equivalent measures or impracticability determinations) must be certified by a PE.  

In prior comment letters to EPA, AGC continually expressed concern over the unmanageable requirement that a PE certify SPCC plans for ever-changing jobsites that temporarily store small quantities of oil.

To meet EPA’s oil discharge history criteria, the site must not have had (1) a single discharge of oil to U.S. waters exceeding 1,000 gallons or (2) two discharges of oil to U.S. waters each exceeding 42 gallons within any 12-month period, in the three years prior to the SPCC plan certification date (or since becoming subject to 40 CFR Part 112 if facility has been in operation for less than three years).  Note that the gallon amount(s) specified (either 1,000 or 42) refers to the amount of oil that actually reaches U.S. waters, not the total amount of oil spilled.

EPA had originally proposed a 10-year spill history criterion for qualified facilities.  The agency took final action on AGC’s recommendation to use a criterion more rationally related to overall risk at a regulated site. 

Motive Power Containers

EPA also exempted “motive power containers” from the SPCC regulations.  A motive power container is any onboard, oil-storage container used primarily to supply fuel to power the movement of the vehicle (e.g., gasoline or diesel) or to operate ancillary onboard apparatus (e.g., hydraulic and lubrication oils).  Examples of such containers include diesel and hydraulic fluid tanks on construction equipment (e.g., tractors, forklifts, bulldozers, self-propelled cranes, self-propelled heavy vehicles). These containers no longer count toward a site’s oil storage capacity. 

The definition of motive power container does not include a bulk storage container that is:

  • Located on non-self-propelled stationary or towed equipment (e.g., stationary cranes, diesel-powered generators, compressors).
  • Used to store or transfer oil for further distribution.

In prior comment letters, AGC stressed that meeting SPCC requirements for such “motive power containers,” especially providing secondary containment, is particularly burdensome for contractors—if not impossible because construction equipment is used temporarily, moved daily, and often it is not parked in the same spot each night. 

Oil-filled Operational Equipment

The revised rule provides an alternative to the general secondary containment requirements for qualifying oil-filled operational equipment.  Oil-filled operational equipment is equipment that stores oil in a “container” solely to support the function of the apparatus or the device.  Examples include hydraulic systems, lubricating systems, gear boxes, machine coolant systems, heat transfer systems, transformers, circuit breakers, and electrical switches.

Specifically, if the oil-filled operational equipment meets EPA’s oil discharge history criteria (see discussion in “qualified facilities” section above), then the owner/operator of the regulated site 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 instead of providing secondary containment.  (Note that eligibility for the oil-filled operational equipment alternative is determined by the discharge history from the equipment, not the entire facility.) 

Mobile Refuelers

EPA has exempted mobile refuelers at construction sites from the sized secondary containment requirements for bulk storage containers.  According to the final rule, a mobile refueler is a “bulk storage container, onboard a vehicle or towed, that is designed or used solely to store and transport fuel for transfer into or from… a motor vehicle… equipment, or other oil storage container.”  Mobile refuelers remain subject to the general secondary containment requirements of the rule (40 CFR Part 112.7(c)).

Previously, the SPCC rule required sized secondary containment for mobile refuelers, such as a dike or catchment basin of sufficient size to contain the capacity of the largest compartment or container on a mobile refueler along with enough room to contain precipitation. 

General secondary containment should be designed to address the most likely discharge from the container and from oil transfers into or from the mobile refueler. The general secondary containment requirements:

  • Do not prescribe a size for a secondary containment structure but require that the containment system prevent the spilled oil from escaping the system prior to clean up occurring.
  • Require appropriate containment and/or diversionary structures or equipment to prevent a discharge to navigable waters or adjoining shorelines. 
  • Allow for the use of certain types of active containment measures that prevent a discharge to navigable waters or adjoining shorelines.

The exemption does not apply to refuelers used primarily for the bulk storage of oil in a fixed location in place of stationary containers (e.g., a refueler that no longer can move or conduct transfers and is left only to serve as a bulk storage container).

EPA Proposes to Extend SPCC Compliance Dates

In a separate action, EPA has proposed to extend the compliance dates for owners and operators of jobsites covered under the SPCC program to prepare and implement their oil spill plans. The new deadline would be July 1, 2009.  This extension would allow EPA time to promulgate additional revisions to the SPCC rule before the compliance deadline.  Because EPA has not yet finalized this proposal, the current compliance dates remains in effect.
 
The current deadlines for preparing and implementing an SPCC plan depend on when you activated your jobsite, as follows:

  • If you activated your jobsite on or before Aug. 16, 2002, you must have an SPCC plan based on the original 1973 rule and you must make any necessary amendments to that SPCC plan (as required by the 2002 rule, noted below) and implement the amended plan by Oct. 31, 2007. [40 CFR Part 112.3(a)]
  • If you activated your jobsite after Aug. 16, 2002, you must prepare and implement an SPCC plan (based on the 2002 rule) by Oct. 31, 2007. [40 CFR Part 112.3(a)]
  • If you activate another jobsite after Oct. 31, 2007, you must prepare and implement an SPCC plan (that complies with the 2002 rule) before breaking ground. [40 CFR Part 112.3(b)]

A literal reading of the rule would suggest that you don’t need an SPCC plan for any jobsite activated after Aug. 16, 2002, and completed by Oct. 31, 2007, but you will still need to take proper steps to control oil spills from such a jobsite.  There are other EPA programs (like the storm water program and the hazardous waste program) that require proper handling, storing, transporting and disposal of oil.  The required elements of an SPCC plan can be found on EPA’s website at http://www.epa.gov/oilspill/spccmust.htm

Background

EPA’s SPCC program was developed in 1973 under the authority of Section 311 of the Clean Water Act.  The SPCC program is administered and enforced by federal EPA in every state; however, states and localities may also have supplemental oil programs.  EPA revised the rule in 2002 (67 FR 47042, July 17) and the amendments took effect on Aug. 17, 2002.  EPA revised the rule again in December 2006, as outlined above, and the amendments take effect on Feb. 26, 2997 (71 FR 77266, Dec. 26).  The compliance deadlines for preparing/amending and implementing an SPCC plan that satisfies the amended rule have been extended several times. 

The SPCC compliance dates were extended on January 9, 2003 (see 68 FR 1348), again on April 17, 2003 (see 68 FR 18890), a third time on August 11, 2004 (see 69 FR 48794), and a fourth time on February 17, 2006 (see 71 FR 8462).  As explained above, a fifth extension has been proposed and is currently undergoing public notice and comment.

[Editor’s Note: If you activated your jobsite on of before Aug. 16, 2002, and you are currently operating under an SPCC plan based on the original 1973 rule, you may take advantage of any regulatory relief provided by the 2002 amendments (e.g., a site with an aboveground storage tank greater than 660 gallons is no longer regulated unless the aggregate aboveground storage exceeds 1,320 gallons) and the December 2006 amendments, once they take effect.  It’s your choice whether or not to incorporate any of the new, more stringent requirements into your SPCC plan in advance of the compliance dates.]

For More Information—

Read the SPCC rule amendment online at http://www.epa.gov/oilspill.

Review the Oil Pollution Prevention regulation (40 CFR Part 112) – http://www.gpoaccess.gov/cfr

Visit the EPA Office of Emergency Management Web site – http://www.epa/gov/emergencies.

Call the Oil Information Center at (800) 424-9346 or visit the Center online at

http://www.epa.gov/superfund/resources/infocenter.

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