Environmental and Safety Issues: New Spill Prevention Control and Countermeasure Rule
In July 2002, EPA published a new Spill Prevention Control and Counter-measure (SPCC) rule that incorporates revisions proposed in 1991, 1993 and 1997. A facility that meets the inclusion criteria must comply with the new rule by February 17, 2003 and implement it by August 18, 2003.
The SPCC changes are expected to reduce the regulatory burden by approximately 40% and reduce the number of facilities regulated by about 55,000. The changes will eliminate duplicate regulation, exempt certain small facilities, exempt most wastewater treatment facilities and require consideration of industry standards in prevention plans. The final rule also allows an owner or operator to substitute a required measure for another providing equivalent environmental protection, with the exception of secondary containment requirements.
Unlike oil spill contingency plans that typically focus on spill cleanup measures after a spill has occurred, SPCC Plans ensure that facilities address containment and other countermeasures that would prevent oil spills from reaching navigable waters. Under EPA's Oil Pollution Prevention regulation, facilities must detail and implement spill prevention and control measures in their SPCC Plans. A spill contingency plan is required as part of the SPCC Plan if a facility is unable to provide secondary containment (e.g., berms surrounding oil storage).
Before a facility is subject to the SPCC rule, three inclusion criteria apply: (1) it must be a non-transportation related, (2) it must have an aggregate above ground oil storage capacity greater than 1,320 gallons or a buried oil storage capacity greater than 42,000 gallons and (3) there must be a reasonable expectation of a discharge into or upon navigable waters of the United States or adjoining shorelines. Some key definitions are necessary to clarify the inclusion criteria.
First off, section 311(a)(1) of the Clean Water Act defines oil as "oil of any kind or in any form including, but not limited to, petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes other than dredged spoil." EPA interprets this definition to include crude oil, petroleum and petroleum-refined products, as well as non-petroleum oils such as vegetable and animal oils.
Secondly, non-transportation-related facilities refer to all fixed facilities, including support equipment, but excluding certain pipelines, railroad tank cars en route, transport trucks en route and equipment associated with the transfer of bulk oil to or from water transportation vessels. In other words, basically any industrial, commercial, agricultural or public facilities using, storing, refining or transporting oil.
Additionally, the revised rule recognizes that oil is sometimes stored in bulk and sometimes used operationally. This is an important interpretation within the rule because the way "capacity" is calculated can be affected. Bulk storage may include, but is not limited to tanks, containers, drums and mobile or portable totes used for storing oil at a facility. Operational use includes oil-filled electrical equipment and manufacturing equipment. Operational use of oil is not subject to the rule's bulk storage requirements and therefore is not included in the storage capacity calculations.
When calculating oil storage capacity, the facility must count all containers of 55 gallons or greater. The 1,320 gallons above ground capacity threshold is based on aggregate storage, meaning the calculation must include the shell capacity (maximum potential volume) of all oil containers rather than the actual amount of product stored in the container. When calculating the buried storage capacity against the 42,000 gallon threshold, all tanks satisfying a State's Underground Storage Tank rules are exempted from the calculation.
Lastly, navigable waters are broadly defined under the Clean Water Act and essentially mean any natural surface water in the U.S. This is the single most confusing SPCC inclusion criterion. The EPA's formal response to questions regarding the potential for spills reaching navigable waters normally is: "Because it is almost impossible to prove that a spill will not reach navigable waters once outside the control of a facility, nearly all facilities that meet the two other inclusion criteria above are subject to the rule."
Companies should begin the process of determining inclusion in the program by calculating the storage capacity of oil throughout the facility. If the facility must comply, two major steps must be taken: (1) the plan must be written to address minimum requirements and (2) a licensed professional engineer must certify the plan.