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VOLUME 2

Redefining Navigable Waters and Other SPCC Regulatory Updates

The Spill Prevention, Control, and Countermeasure (SPCC) rule takes the spotlight once again.  At the end of 2008, the Federal Register published the United States Environmental Protection Agency’s (U.S. EPA) proposed amendments and finalized regulations affecting the SPCC rule.  According to the U.S. EPA Emergency Management web site, the SPCC rule was amended to provide increased clarity to tailor requirements to particular industry sectors and to streamline certain requirements for those facility owners or operators subject to the rule. [1, 2, 3]  The amendments were finalized on December 5, 2008, and will become effective on April 4, 2009.  Additionally, the U.S. EPA proposed to amend the dates by which facilities must prepare or amend their SPCC plans and implement those plans; however, this was later withdrawn in accordance with a White House memorandum entitled “Regulatory Review.” [4]  The current compliance dates are described in further detail below.  Finally, on November 26, 2008, the Federal Register published the U.S. EPA’s direct final rule to revise the definition of “navigable waters” in the SPCC rule to comply with a court decision. [5] 

Finalized Amendments to SPCC Rule

The U.S. EPA addressed the need to clarify, tailor, and streamline some of the requirements of the rule.  These changes include:

Exemptions for certain types of containers:

Streamline the rule and provide additional flexibility for all regulated facilities:

Definitions

The U.S. EPA finalized sector-specific changes for agriculture, oil production facilities, and animal fats and vegetable oils.  Additionally, for a subset qualified facilities, the U.S. EPA streamlined and tailored the SPCC requirements.  The previous amendment to the SPCC rule in December 2006 allowed owners and operators of “qualified facilities” to self-certify their SPCC plans rather than have the plan certified by a professional engineer.  Facilities were considered “qualified” if they had (1) 10,000 gallons or less aggregate aboveground storage capacity, and (2) no single discharge of more than 1,000 gallons of oil to navigable waters or a shoreline (and no two such discharges totaling more than 42 gallons within any 12-month period).  The December 2008 amendments further establish qualified facilities based on tiers (I and II).

“Tier I qualified facilities”, or those that meet current qualified facilities eligibility criteria and have no oil storage containers with an individual capacity of greater than 5,000 U.S. gallons, have the option to self-certify the SPCC plan and comply with other streamlined requirements.  Specifically, a “Tier I qualified facility” can complete a self-certifying SPCC Plan template instead of a full SPCC Plan, thus certifying that the facility complies with a set of streamlined SPCC rule requirements.  All other qualified facilities will be designated “Tier II qualified facilities”.  Tier II facilities may prepare a self-certified SPCC Plan instead of one reviewed and certified by a Professional Engineer (PE).  For Tier II facilities, only portions of the plan that include environmentally equivalent measures or impracticability determinations are required to be certified by a PE (the remaining portions of the plan could be self-certified by the facility owner/operator).

Delay of Effective Date

In accordance with the final rule published in the Federal Register on February 3, 2009, the U.S. EPA is delaying by 60 days the effective date of the December 5, 2008, final rule that amends the SPCC regulations. [1, 2, 3] The amendments will now be effective April 4, 2009. 

The U.S. EPA is requesting public comment on the entire final rule, and specifically, the optional approaches for produced water containers and the criteria for qualified oil production facilities.  Comments are due on or before March 5, 2009.  Finally, the Agency is also reviewing the dates by which owners or operators of facilities must prepare or amend their SPCC Plans, and implement those Plans as described below.  A January 20, 2009, White House memorandum entitled “Regulatory Review” withdrew the previously issued SPCC Compliance Dates Final Rule pending further Agency review [4].  According to the February 3, 2009, final rule, U.S. EPA intends to address these dates in a separate notice.  The current compliance dates as indicated in the fifth extension of the original compliance dates on May 16, 2007 (72 FR 27443) are as follows:

According to the EPA web site, this withdrawal does not remove any regulatory requirement for owners or operators of facilities in operation before August 16, 2002, to maintain an SPCC plan in accordance with 40 Code of Federal Regulations (CFR) 112.

Revisions to the Definition of “Navigable Waters”

On November 26, 2008, the U.S. EPA finalized a rule to amend a Clean Water Act (CWA) section 311 regulation that defines the term “navigable waters.” [5]  When the SPCC Rule was amended in July 2002, the U.S. EPA adopted a broad definition of “navigable waters” that included all waters that “could affect interstate or foreign commerce,” tributaries to those waters, and adjacent wetlands.  This definition was the subject of considerable controversy and sparked an immediate legal challenge.  After the U.S. EPA revised the definition in 2002, a court decision invalidated the revisions and restored the regulatory definition promulgated by the U.S. EPA in 1973.  As a result, in November 2008, the U.S. EPA amended the definition in 40 CFR Part 112 to comply with the court decision.  It should be noted that the final rule does not amend the definition of “navigable waters” in any other regulation that has been promulgated by the U.S. EPA.

The 1973 regulatory definition of “navigable waters” for the SPCC rule was published in the Federal Register on December 11, 1973 (see 38 FR 34165) and is now codified at 40 CFR 112.2.  The definition reads as follows:

The term “navigable waters” of the United States means “navigable waters” as defined in section 502(7) of the FWPCA, and includes:

(1)   all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as;

(2)   interstate waters;

(3)   intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and

(4)   intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.

Impacts to Regulated Facilities

In 1995, the U.S. EPA conducted a survey to determine the number of facilities regulated by the SPCC Program. [6]  According to the 1995 survey results between 350,000 and 425,000 facilities were potentially regulated under the SPCC regulation.  Although it is not known how many facilities will be impacted by the December 2008 amendments and the direct final rule defining “navigable waters,” the changes could eliminate from the SPCC Program some of the facilities with small oil capacity operations, and those that benefit from the narrowed definition of “navigable waters.”

SPCC plans are potentially required by facilities that, due to their locations, could reasonably be expected to discharge oil to "navigable waters" in amounts that might be harmful to those waters.  Therefore, the narrower definition may require fewer facilities to be subject to the SPCC regulations if the facilities can demonstrate that releases of oil cannot reasonably be expected to reach navigable waters.  A determination of how the court’s decision impacts a facility will involve examination into the nature of water bodies in proximity to the facility and the potential for oil, in the event of a release, to reach those water bodies that qualify as "navigable waters" under the adopted 1973 definition.

Additionally, the numerous changes to the SPCC rule, including exemptions for certain containers and a provision for self-certification and more flexibility for compliance, will alleviate some of the regulatory burden of certain regulated facilities.  (Note:  There were several sector-specific changes in the December 2008 rule; however, these primarily impact agriculture and oil production facilities.)  The opportunity to self-certify could save companies effort, both in labor and financially, when preparing the SPCC plans. 

The new rule changes could impact the applicability of SPCC at many facilities nationwide.  We recommend that if your facilities are subject to SPCC that you revisit each location to determine if rule changes affect your sites or reduce your regulatory burden. 

References

[1] U.S. EPA.  “SPCC Rule Amendments, Delay of Effective Date and Request for Comment on SPCC Requirements Finalized in December 2008 – Interim Final Rule.”  Fact Sheet (January 2009).  Retrieved February 2, 2009 from the World Wide Web: 

http://www.epa.gov/OEM/docs/oil/spcc/fact_sheet_spcc_date_extension_01-29-09.pdf.

[2] U.S. EPA.  “Spill Prevention, Control, and Countermeasure (SPCC) Rule.”  Retrieved February 2, 2008, from the World Wide Web: http://www.epa.gov/emergencies/content/spcc/index.htm.

[3] Federal Register.  Environmental Protection Agency.  Oil Pollution Prevention; Non-Transportation Related Onshore Facilities; Spill Prevention, Control, and Countermeasure Rule – Final Amendments.  Final rule:  Delay of effective date and request for comment.  Volume 74, Number 21 (February 3, 2009).  Page 5900-5903.  Received February 3, 2009, via electronic mail (envsubset@epamail.epa.gov).

[4] U.S. EPA.  “SPCC Rule Compliance Dates.”  Retrieved February 2, 2009 from the World Wide Web: 

http://www.epa.gov/OEM/content/spcc/compliance_dates.htm.

[5] U.S. EPA.  “Spill Prevention, Control, and Countermeasure (SPCC) Rule Amendment, Revisions to the Regulatory Definition of ‘Navigable Waters’.”  Fact Sheet 530-F-08-017 (November 2008).  Retrieved December 9, 2008 from the World Wide Web:

http://www.epa.gov/emergencies/docs/oil/spcc/SPCCFactsheet_Navigable_Waters_Nov08.pdf.

[6] U.S. EPA.  “Analysis of the Number of Facilities Regulated by EPA’s SPCC Program.”  July 1996.  Retrieved December 16, 2008 from the World Wide Web: 

http://www.epa.gov/emergencies/docs/oil/spcc/pap_tpop.pdf.

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VOLUME 2 - Other Articles

• The U.S. EPA and The New Administration – Aligned on Climate Change?
• U.S. EPA’s Regulatory Agenda - Fall 2008