Proposed Changes to Federal Oil Spill Program Would Benefit Contractors
AGC plans to comment on the U.S. Environmental Protection Agency (EPA) proposed changes to its federal oil spill control regulations that would ease the compliance burden on construction companies covered by the program. The proposal includes many of AGC’s past recommendation on how to streamline the oil spill rules to minimize the implementation problems common to construction sites.
A construction site with aboveground storage capacity of more than 1,320 gallons of oil (counting only tanks of 55 gallons or greater) is subject to EPA’s so-called Spill Prevention, Control, and Countermeasure (SPCC) rule if a spill could reach U.S. waters. The October 15 proposal would give site owners and operators some flexibility in determining the best way to meet certain core requirements, without triggering any need for professional engineer (PE) approval (72 FR 58378). It also would clarify – for the first time – how the federal rules apply to commercial asphalts as well as hot-mix. Also worth noting is a provision that would offer certain “qualified facilities” the option of completing a self-certified SPCC plan template in lieu of a full SPCC plan.
The full text of the proposal and additional information is online at http://www.epa.gov/oilspill/spcc_oct07.htm. Comments referencing Docket Number EPA-HQ-OPA-2007-0584 are due to EPA by December 14 and may be submitted via the Internet at http://www.regulations.gov.
Asphalt: In or Out?
EPA proposes to exempt hot-mix asphalt (HMA) from the SPCC requirements, thereby allowing construction site operators to exclude silos of hot-mix asphalt from the total oil storage capacity calculation for any given job site. EPA believes it is unnecessary to apply the SPCC requirements to HMA. EPA would continue to regulate asphalt cement (AC), asphalt emulsions, and cutbacks (which are not hot-mix asphalt), but the notice clarifies the flexibility contained in the current SPCC rule regarding these asphalt materials.
EPA considered exempting both HMA and AC from the SPCC rule, per AGC’s repeated and well-documented requests, but chose not to propose such an option based on the Agency’s independent analysis. AGC is currently reviewing EPA’s August 29, 2007 report, Asphalt Under the Spill Prevention, Control, and Countermeasure Regulation, which contends that AC does pose a risk of being discharged into U.S. waters.
Standard Deviations for all Sites
Construction site owners and operators tasked with preparing SPCC plans would benefit from several rule changes that would allow the use of alternative spill control measures (in lieu of certain prescriptive requirements) without obtaining prior approval from a PE. Currently, the SPCC rule requires a PE-certified explanation of “environmental equivalence” every time a site operator wants to deviate from any SPCC plan requirements.
AGC has repeatedly pointed out that most deviations could be easily addressed by the site operator and having to hire a PE or retain one on staff is unnecessary. AGC recommend that EPA develop several “standard (or blanket) deviations” that acknowledge the unique issues and implementation problems that the construction industry faces in achieving full compliance with the SPCC rule. Under the proposal, contractors would be allowed to take advantage of the following standard deviations at all sites without obtaining PE certification—
- Facility Diagram. EPA proposes to revise the facility diagram requirement at § 112.7(a)(3) to clarify how containers, fixed and mobile, must be identified on a site diagram. For mobile or portable containers, the site owner or operator would be allowed to mark the approximate location where such containers are stored, the potential range in number of containers, and their anticipated contents and capacities. (Current SPCC rules require you to mark the location and contents of each container.) In addition, a site diagram prepared for a construction general stormwater permit (or other pollution prevention plan) may be used in an SPCC Plan if it meets the requirements of the SPCC rule. Ongoing changes to the facility diagram would be considered administrative in nature and would not require PE certification. In prior correspondence with EPA, AGC has recommended all of these necessary changes to the SPCC rule.
- Security Measures. EPA proposes to amend the facility security requirements at § 112.7(g) to allow an owner or operator to tailor his security measures to the site’s specific characteristics and location. This change would recognize AGC’s position that prescriptive fencing and lighting requirements are neither practical nor appropriate for many construction sites that are temporary in nature.
- Integrity Testing. EPA proposes to amend the requirements at §§ 112.8(c)(6) and 112.12(c)(6) to provide flexibility in complying with bulk storage container integrity testing requirements. Specifically, the proposal would allow an owner or operator to consult and rely on industry standards to determine the appropriate qualifications for tank inspectors/testing personnel and the type/frequency of integrity testing required for a particular container size and configuration. Such a deviation would not require PE approval. AGC has stressed that it is extremely costly to seek a PE-certified explanation of environmental equivalence every time a site owner or operator chooses to base their integrity testing program on an industry standard instead of the more stringent SPCC requirements.
SPCC Plan Template
EPA proposes to streamline and tailor the SPCC requirements for a subset of qualified facilities. Qualified facilities were addressed in a recent amendment to the SPCC rule (71 FR 77266, December 26, 2006). The owner or operator of such a facility was provided an option to self-certify his SPCC Plan and comply with other streamlined requirements. This proposed rule further defines a subset of qualified facilities (“Tier I qualified facilities”) as those that meet the current qualified facilities eligibility criteria and that have no oil storage containers with an individual storage capacity greater than 5,000 gallons. A Tier I qualified facility would have the option to complete a self-certified SPCC Plan template (proposed as Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. All other qualified facilities will be designated ‘‘Tier II qualified facilities.” Previously, AGC has asked EPA to consider a simplified set of SPCC plan requirements for temporary construction sites storing small quantities of oil.
In December 2006, EPA finalized a separate set of amendments to the SPCC rule to address a number of AGC’s top issues, including streamlined requirements for certain low-risk sites (now called “qualified facilities”) and an exemption from the rule for mobile construction equipment (71 FR 77266, December 26). See AGC’s Environmental Observer dated December 2006. In addition, EPA recently amended by final rule published May 16, 2007 (72 FR 27443), the deadline for complying with the new SPCC requirements. See AGC’s Environmental Observer dated June 2007.
Note that nothing in the October 15, 2007, proposed rule would remove the current requirement for owners or operators of construction sites in operation before August 16, 2002, to develop, implement and maintain an SPCC plan in accordance with the 1973 SPCC rule. Such sites are required to maintain their plans until the applicable date for revising and implementing plans under the new amendments.
For additional information contact Leah Pilconis, Senior Environmental Advisor to AGC, at firstname.lastname@example.org.
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