Notice Concerning Certain Issues Pertaining to the July 2002
Spill Prevention, Control, and Countermeasure (SPCC) Rule
[Federal Register: May 25, 2004 (Volume 69, Number 101)]
[Notices]
[Page 29728-29730]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my04-49]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-7666-7]
Notice Concerning Certain Issues Pertaining to the July 2002
Spill Prevention, Control, and Countermeasure (SPCC) Rule
AGENCY: Environmental Protection Agency.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) has partially
settled litigation over the Spill Prevention, Control, and
Countermeasure (SPCC) rule. This notice provides clarifications
developed by the Agency during the course of settlement proceedings. It
also announces the availability of a letter issued by EPA's Office of
Solid Waste and Emergency Response (OSWER) to the Petroleum Marketers
Association of America (PMAA) on our website, i.e., epa.gov/oilspill,
or by contacting the docket as described below under ADDRESSES.
ADDRESSES: EPA has established a docket for this action under Docket:
OPA-2004-0002. All documents in the docket are listed in the EDOCKET
index at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the EPA Docket Center EPA West, Room B102, 1301 Constitution
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30
a.m. and 4:30 p.m., Monday through Friday, excluding legal holidays.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the EPA Docket is (202) 566-0276.
FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Oil Program
Staff, U.S. EPA, at 703-603-8769 (fleischman.hugo@epa.gov); or the
RCRA/Superfund Hotline at 800-424-9346 (in the Washington, DC
metropolitan area, 703-412-9810) (epahotline@bah.com). The
Telecommunications Device for the Deaf (TDD) Hotline number is 800-553-
7672 (in the Washington, DC metropolitan area, 703-412-3323). You may
wish to visit the Oil Program's Internet site at
http://www.epa.gov/oilspill.
SUPPLEMENTARY INFORMATION:
I. General
How Can I Get Copies of the Background Materials Supporting Today's
Notice or Other Related Information?
EPA will publish this document, as well as the letter from OSWER to
PMAA described more fully below, on its Web site, http://epa.gov/
oilspill, and has already posted the settlement agreement on that Web
site. Alternatively, contact the docket as described above under
ADDRESSES. You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr.
II. Background
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
Litigation
On July 17, 2002, EPA published a final rule (67 FR 47042),
amending the SPCC regulation. Several members of the regulated
community filed legal challenges to certain aspects of the rule. See
American Petroleum Institute v. Leavitt et al., No. 1;102CV02247 PLF
and consolidated cases (D.D.C. filed November 14, 2002).\1\
---------------------------------------------------------------------------
\1\ Lead plaintiffs in the cases were the American Petroleum
Institute, Marathon Oil Co., and the Petroleum Marketers Association
of America.
---------------------------------------------------------------------------
Settlement discussions between EPA and the plaintiffs have led to
an agreement on all issues except one. In this notice, we are
publishing clarifications developed by the Agency during the course of
settlement proceedings (and which provided the basis for the settlement
agreement) regarding the SPCC regulation to the regulated community and
other interested parties. We are also notifying the public of the
availability of OSWER's letter to PMAA referenced above, on our Web
site, http://epa.gov/oilspill, and through the docket, as described
above.
III. Clarifications
``Loading Racks''
Plaintiffs challenged certain statements made in the preamble to
the July 2002 SPCC amendments (and the response-to-comment document)
concerning the ``loading/unloading rack'' requirements under 40 CFR
112.7(h). That provision addresses specific SPCC requirements for tank
car and tank truck loading and unloading racks, including requirements
for secondary containment. The preamble language at issue, which
appears at 67 FR 47110 (July 17, 2002), stated the following:
This section is applicable to any non-transportation-related or
terminal facility where oil is loaded or unloaded from or to a tank
car or tank truck. It applies to containers which are aboveground
(including partially buried tanks, bunkered tanks, or vaulted tanks)
or completely buried (except those exempted by this rule), and to
all facilities, large or small. All of these facilities have a risk
of discharge from transfers. (Emphasis added.)
The Agency did not intend with the emphasized language to interpret
the term ``loading/unloading rack.'' Instead, the Agency was responding
generally to a variety of comments each asking that their specific
situation not be subject to the 40 CFR 112.7(h) requirements. The
reasoning of these commenters did not focus specifically on the
contours of what might be considered a loading/unloading rack, but
instead focused on
[[Page 29729]]
a variety of other factors relevant to their facilities. See, e.g., 67
FR 47110 (July 17, 2002) (``Another commenter asked that we clarify
that only facilities routinely used for loading or unloading of tanker
trucks from or into aboveground bulk storage tanks are subject to this
provision.'') Thus, the emphasized language above was meant to be a
rejection of pleas for exclusions of specific facilities, not an
interpretation of the term ``loading/unloading rack.''
In the response-to-comments document for the rule, EPA stated that
``[w]e intend Sec. 112.7(h) to apply to all facilities, including
production facilities.'' As discussed more fully below, we interpret
Sec. 112.7(h) only to apply to loading and unloading ``racks.'' Under
this interpretation, if a facility does not have a loading or unloading
``rack,'' Sec. 112.7(h) does not apply. Thus, in stating that section
112.7(h) applies to ``all facilities, including production
facilities,'' the Agency only meant that the provision applies if a
``facility'' happens to have a loading or unloading rack present. The
Agency did not mean to imply that any particular category of
facilities, such as production facilities, are likely to have loading
or unloading racks present.
Plaintiffs also challenged a change in the language of Sec.
112.7(h) (formerly codified as Sec. 112.7(e)(4)). Specifically, EPA
substituted the phrase ``loading/unloading area drainage'' for the
phrase ``rack area drainage'' in paragraph Sec. 112.7(h)(1). The
Agency does not interpret this change as expanding the requirements of
that section beyond activities associated with tank car and tank truck
loading/unloading racks. After all, the title of Sec. 112.7(h) remains
``facility tank car and tank truck loading/unloading rack.'' In
addition, the record for the rulemaking reflects that the Agency
specifically rejected the idea of enlarging the scope of that section
to apply beyond ``racks.'' (See response-to-comment document, p. 212,
rejecting a comment on the proposed rule suggesting that we change the
title of Sec. 112.7(h) from ``loading/unloading rack'' to ``loading/
unloading area'' because the Agency had not proposed such a change.)
Like other editorial changes to the rule, many of which were not
accompanied by specific explanations, the Agency believes the change
simply serves to make the rule easier to understand. See, 67 FR 47051
(describing the Agency's use of a ``plain language'' approach in the
rule). In this case, the change in language made the terminology used
in the sentence uniform (a basic principle of plain language approaches
to rule writing). Previously, the rule stated that a facility must
compensate for lack of specified drainage systems at the ``rack area''
with ``a quick drainage system for tank car or tank truck loading and
unloading areas.'' Obviously, the scope of these two emphasized terms
was always meant to be identical, and the challenged language change
only makes that clearer.
``Impracticability''
Plaintiffs challenged statements made in the preamble to the SPCC
amendments concerning the meaning of ``impracticability'' under 40 CFR
112.7(d). As you know, that section provides that where secondary
containment is ``not practicable,'' a facility may use a contingency
plan instead. The preamble language at issue, which appears at 67 FR
47104 (July 17, 2002), stated the following:
We believe that it may be appropriate for an owner or operator
to consider costs or economic impacts in determining whether he can
meet a specific requirement that falls within the general deviation
provision of Sec. 112.7(a)(2). We believe so because under this
section, the owner or operator will still have to utilize good
engineering practices and come up with an alternative that provides
``equivalent environmental protection.'' However, we believe that
the secondary containment requirement in Sec. 112.7(d) is an
important component in preventing discharges as described in Sec.
112.1(b) and is environmentally preferable to a contingency plan
prepared under 40 CFR part 109. Thus, we do not believe it is
appropriate to allow an owner or operator to consider costs or
economic impacts in any determination as to whether he can satisfy
the secondary containment requirement. Instead, the owner or
operator may only provide a contingency Plan in his SPCC Plan and
otherwise comply with Sec. 112.7(d). Therefore, the purpose of a
determination of impracticability is to examine whether space or
other geographic limitations of the facility would accommodate
secondary containment; or, if local zoning ordinances or fire
prevention standards or safety considerations would not allow
secondary containment; or, if installing secondary containment would
defeat the overall goal of the regulation to prevent discharges as
described in Sec. 112.1(b). (Emphasis added.)
The Agency did not intend with the language emphasized above to
opine broadly on the role of costs in determinations of
impracticability. Instead, the Agency intended to make the narrower
point that secondary containment may not be considered impracticable
solely because a contingency plan is cheaper. (This was the concern
that was presented by the commenter to whom the Agency was responding.)
As discussed above, this conclusion is different than that reached with
respect to purely economic considerations in determining whether to
meet other rule requirements subject to deviation under Sec.
112.7(a)(2). Under that section, as stated above, facilities may choose
environmentally equivalent approaches (selected in accordance with good
engineering practices) for any reason, including because they are cheaper.
In addition, with respect to the emphasized language enumerating
considerations for determinations of impracticability, the Agency did
not intend to foreclose the consideration of other pertinent factors.
In fact, in the response-to-comment document for the SPCC amendments
rulemaking, the ``Agency stated that ''* * * for certain facilities,
secondary containment may not be practicable because of geographic
limitations, local zoning ordinances, fire prevention standards, or
other good engineering practice reasons.'' For more examples of
situations that may rise to the level of impracticability, see, e.g. 67
FR 47102 (July 17, 2002) and 67 FR 47078 (July 17, 2002) (pertaining to
flow and gathering lines).
Produced Water
The Agency has been asked whether produced water tanks at dry gas
facilities are eligible for the SPCC rule's wastewater treatment
exemption at 40 CFR 112.7(d)(6). A dry gas production facility is a
facility that produces natural gas from a well (or wells) from which it
does not also produce condensate or crude oil that can be drawn off the
tanks, containers or other production equipment at the facility.
The SPCC rule's wastewater treatment exemption excludes from 40 CFR
part 112 ``any facility or part thereof used exclusively for wastewater
treatment and not used to satisfy any requirement of this part.''
However, for the purposes of the exemption, the ``production, recovery,
or recycling of oil is not wastewater treatment.'' In interpreting this
provision, the preamble to the final rule states that the Agency does
``not consider wastewater treatment facilities or parts thereof at an
oil production, oil recovery, or oil recycling facility to be
wastewater treatment for purposes of this paragraph.''
It is our view that a dry gas production facility (as described
above) would not be excluded from the wastewater treatment exemption
based on the view that it constitutes an ``oil production, oil
recovery, or oil recycling facility.'' As discussed in the preamble to
the July 2002 rulemaking, ``the goal of an oil production, oil
recovery, or oil recycling facility is to maximize the
[[Page 29730]]
production or recovery of oil. * * *'' 67 FR 47068. A dry gas facility
does not meet this description.
In verifying that a particular gas facility is not an ``oil
production, oil recovery, or oil recycling facility,'' the Agency plans
to consider, as appropriate, evidence at the facility pertaining to the
presence or absence of condensate or crude oil that can be drawn off
the tanks, containers or other production equipment at the facility, as
well as pertinent facility test data and reports (e.g., flow tests,
daily gauge reports, royalty reports or other production reports
required by state or federal regulatory bodies).
``Facility''
In the July 2002 SPCC amendments, the Agency promulgated
definitions of ``facility'' and ``production facility.'' These
definitions, which appear in 40 CFR 112.2, apply ``for the purposes
of'' part 112. The Agency has been asked which of these definitions
governs the term ``facility'' as it is used in 40 CFR 112.20(f)(1) when
applied to oil production facilities. 40 CFR 112.20(f)(1) sets criteria
for determining whether a ``facility could, because of its location,
reasonably be expected to cause substantial harm to the environment''
(emphasis added). It is the Agency's view that, because, among other
things, that section consistently uses the term ``facility,'' not
``production facility,'' it is the definition of ``facility'' in 40 CFR
112.2 that governs the meaning of ``facility'' as it is used in 40 CFR
112.20(f)(1), regardless of the specific type of facility at issue.
Notice of Availability
With this notice, EPA is announcing the availability of a letter
issued by the Assistant Administrator for OSWER to PMAA addressing
certain matters pertaining to the SPCC rule's requirements for
integrity testing, security, and loading racks. This letter is
available on EPA's website at epa.gov/oilspill or by contacting the
docket as described above.
Dated: May 17, 2004.
Marianne Lamont Horinko,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 04-11775 Filed 5-24-04; 8:45 am]
BILLING CODE 6560-50-P