New Oil Spill Plan Rule May Have Impact on Farms and Others

On October 15, 2007, the Environmental Protection Agency (EPA) published proposals that would streamline requirements under its oil Spill Prevention, Control, and Countermeasure (SPCC) rule. The proposals would provide exemptions for certain equipment on farms used for pesticide application, hot-mix asphalt containers, loading and unloading racks, and home heating oil containers found at single-family residences, including farms.

SPCC Plans are an integral part of the EPA's strategy to prevent oil spills from reaching the nation's water supplies. Under EPA's Oil Pollution Prevention regulation, facilities must detail and implement spill prevention and control measures in their SPCC Plans. Facilities subject to SPCC rules include those with above-ground storage capacity of 1,320 gallons or underground storage capacity in excess of 42,000 gallons. Each covered facility must develop and implement an SPCC Plan aimed to address: (1) operating procedures that may prevent oil spills; (2) control measures installed to help prevent a spill from reaching navigable waters; and (3) any countermeasures to contain, clean up, and mitigate the effects of an oil spill that reaches navigable waters. Most facilities subject to the SPCC rule have until July 1, 2009 to update and implement their Plans in accordance with amendments published last year. Farms that meet the threshold quantities do not have to comply until a new rule is finalized with respect to farming operations.

Under the new proposals, EPA would establish two tiers of “qualified facilities” that would have less stringent SPCC obligations. “Qualified facilities” would be those facilities that meet the above threshold quantities for oil storage but that:

1) have 10,000 gallons or less in aggregate aboveground oil storage capacity; and

2) have not had a single discharge of oil to navigable waters exceeding 1,000 gallons, or two (2) discharges of oil each exceeding 42 gallons within any twelve-month period, in the three years prior to the SPCC Plan certification date.

Qualified facilities would be allowed to self-certify their SPCC plans, rather than having a Professional Engineer review and certify the Plan. Facilities that qualify as “Tier I qualified facilities” (i.e., meet the above requirements and have no individual oil containers greater than 5,000 gallons) could complete an SPCC Plan template and self-certify, which would even further decrease the cost and time required to prepare and implement the Plan. EPA anticipates that as many as 128,000 farms will qualify as Tier I facilities. Many other facilities with smaller quantities of oil could also benefit from these changes.

Other changes that could apply to any facility required to have an SPCC Plan, include:

· Relaxed secondary containment requirements,

· Performance-based security requirements (to allow facilities to tailor their security measures based on individual circumstances),

· Flexibility to use industry standards to meet container integrity testing, particularly for containers that store Animal Fats or Vegetable Oils (AFVOs),

· Changes to the facility diagram requirement to address mobile and portable containers,

· Changes to definition of “facility” to clarify that contiguous or non-contiguous buildings, properties, parcels, leases, structures, installations, pipes, or pipelines may be considered separate facilities,

· Exemption for completely buried oil storage tanks at nuclear power generation facilities, and

· Clarification that wind turbines meet the definition of "oil-filled operational equipment" and can take advantage of the oil spill contingency plan compliance option as an alternative to secondary containment requirements.

None of these proposed changes has become final, and EPA is accepting comments until December 14, 2007. EPA also anticipates issuing a separate SPCC rule for farms. In the meantime, EPA has instructed farmers to maintain their existing plans but be prepared to amend and implement the plan when EPA promulgates a rule specific for farms and specifies a compliance date for farms.

For more information about the SPCC rule and the latest proposed changes, contact Terri Czajka at terri.czajka@icemiller.com, Ellen Gregory at ellen.gregory@icemiller.com, or Jennifer Andres at jennifer.andres@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.