Industry Efforts to Clarify the SPCC
After the Notices of Violations were issued, the aviation trade associations became involved, and began to meet with EPA Headquarters in Washington to voice industry concerns. NATA, ATA, AAAE and ACI provided information to EPA to demonstrate that the Agency's emerging interpretation that refueler vehicles were mobile containers was news to the industry and, in the case of the airport operations arena, completely impracticable.
Soon after these initial meetings, the EPA promulgated its final rule revising the SPCC regulations on July 17, 2002, but the final rule did not address the portable or mobile storage container debate. However, the preamble to the rule did address the meaning of impracticability.
After the final rule was issued, the EPA Regional offices appeared to recognize installation of secondary containment for refuelers when they were fueling aircraft was impracticable. They also seemed to recognize such containment was impracticable on the ramp when refuelers were in stand-by status. However, EPA continued to maintain that secondary containment was required for "parked" refuelers.
The aviation trade associations continued to submit comments to the Agency regarding the need for guidance regarding the issue, but received no definition of a "parked" refueler. In response, aviation consultants and attorneys began to advise airlines and FBO management to park their refuelers on the ramp when the refuelers were in service, or in loading rack or tank farm areas (where secondary containment was already installed) for longer periods of inactivity or overnight. At airports where drainage systems flowed to oil/water separators, the refuelers could be parked wherever any releases of fuel would flow to the appropriate drainage system.
On the legislative side, Senator Inhofe, the chairman of the Environment and Public Works Committee, became involved in the issue. He sent a letter to then EPA Administrator Christine Todd Whitman, requesting that the Agency issue appropriate policy guidance confirming the status of aviation fuel trucks as transportation vehicles and not storage facilities. Senator Inhofe pointed out, among other things, that the physical requirements needed to comply with the secondary containment rule "ran counter to the safe and secure operation of airports." EPA did not respond to his letter.
On March 31, 2004, EPA held a SPCC Stakeholders Meeting outside of Washington DC, to explain a SPCC litigation settlement, elaborate upon SPCC issues and address questions from the regulated community. At the meeting, EPA stated its emerging view that mobile refuelers are bulk storage tanks which require secondary containment. Mark Howard, of EPA's' Office of Emergency Response, indicated that the Agency would take further action on the issue, whether it be the issuance of informal guidance, formal rulemaking or enforcement priority.
In fact, on June 28, 2004, EPA published a notice in the Federal Register that it was considering a proposal to further amend the final SPCC regulations. The notice stated that the Agency was considering a proposal to amend the regulations in several different areas, including the applicability of the rule to mobile/portable containers. In spite of this notice, by the fall of 2004, several of EPA's regional offices continued with enforcement actions trying to resolve outstanding Notices of Violation involving the failure to provide secondary containment for parked mobile refuelers. Given the conflicting positions of the Agency, the aviation industry was uncertain as to what direction to take and whether to begin installation of costly containment in parking areas or wait until the issue could be resolved.
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