EPA Offers a Bit of (SPCC) Relief

Environmental attorney Bonni F. Kaufman interprets the latest changes to the Spill Prevention Control and Countermeasure Rule by EPA.

Many companies found such containment to be cost-prohibitive and impracticable, given space limitations in parking areas, the fact that many refuelers are parked overnight in the airport operations area, and that airport authorities could not approve installation of berms or other containment in airport operating areas due to fire safety codes that prohibit the pooling of flammable liquids. As a result, EPA proposed the recent revisions to the rule.

Substantive Provisions

As a result of heavy industry pressure and EPA’s presumed recognition that some aspects of the final SPCC rule promulgated in 2000 were too burdensome or impractical, EPA has proposed to amend the SPCC requirements to reduce the regulatory burden on certain facilities. Of most importance to the aviation industry is EPA’s proposal to amend the SPCC regulations to exempt airport mobile refuelers from the “sized” secondary requirements of 40 CFR 112.8(c)(2) and (11). These provisions require facilities to position or locate mobile or portable oil storage containers to prevent a discharge and to have “secondary containment, such as a dike or catchment basin, sufficient to contain the capacity of the largest single compartment or container.”

While the refuelers would be exempt from the “sized” secondary containment requirements in 40 CFR 112.11, they would still be subject to the general secondary containments of section 112.7(c). Section 112.7 permits facilities to use certain types of active containment measures to generally prevent a discharge to navigable waters, rather than a specific type of containment that can contain a spill from the largest compartment of a tank.

EPA considers active containment measures to be measures that require deployment or other specific action by the owner or operator. They include measures that may be deployed either before an activity involving the handling of oil starts, or in reaction to a discharge, as long as the active measure is designed and can reasonably be implemented to prevent an oil spill from reaching navigable water. Active measures include temporary curbing, portable barriers, storm drain covers, sock mats, spill kits, or other land based action as long as they can be implemented in time to prevent the spilled oil from reaching navigable waters.

However, it does appear from the text of the proposed rule that EPA still expects that more passive secondary containment, such as barriers, contouring, or curbing will have to be installed when a truck is unmanned or parked without means for observation, or if sorbents or other measures will not prevent the spill from reaching navigable water in time. (See page 57 of the Proposed Rule, RIN 2050-AG23.) An active measure may still be appropriate, provided that the measure is capable of containing the oil discharge volume and rate, and is timely and properly constructed/deployed.) EPA’s SPCC Guidance also acknowledges that in certain situations, any type of secondary containment may be impracticable due to geographic limitations and fire codes. If secondary containment is impracticable, the facility owner or operator must clearly explain in the SPCC plan why such secondary containment is impracticable, and 1) conduct periodic integrity and leak testing of tanks, valves and piping; 2) provide a written commitment of manpower, equipment and materials required to expeditiously control and remove any quantity of oil that may be harmful; and 3) prepare an oil spill contingency plan following the provisions of 40 CFR part 109. (The recent EPA SPCC guidance provides a checklist of SPCC requirements eligible for impracticability determinations and a sample oil spill contingency plan that complies with 40 CFR Part 109.)

Another proposed revision to the SPCC rules that may assist the aviation industry is EPA’s effort to clarify that motive power containers are specifically exempt from SPCC regulation. A motive power container is defined as an integral part of a motor vehicle, providing fuel for propulsion or providing some other operational function, such as lubrication of moving parts or for operation of hydraulic equipment. Motive power containers include construction vehicles, aircraft deicers (that have separate fuel storage for hydraulic lift operation), and other heavy equipment.

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