Finally, on March 9, 2005, Craig Matthiessen, an EPA associate director in the Office of Emergency Management, sent a letter to the Director of Environmental Affairs for AAAE, providing EPA's final views on secondary containment for mobile refuelers. The letter states that mobile refuelers are "mobile or portable storage containers" subject to the SPCC rule requirements as originally promulgated in 1974 and that EPA has no plans to amend the SPCC requirements with respect to mobile refuelers. However, it will issue comprehensive regional guidance in August 2005 that will address the flexibility in engineering design solutions to provide secondary containment for parked refuelers. Matthiessen's letter also provided the following key information regarding impracticability in the aviation fueling context:
- When mobile refuelers are fueling, staged in operating locations or traveling to/from aircraft, sized secondary containment may be impracticable;
- Where it is impracticable, some facilities have used NFPA design guidelines and/or good engineering design solutions;
- Good and reasonable engineering design solutions are based on site-specific conditions and will not be unilaterally specified by the EPA; and
- While the applicability of design solutions must be evaluated by the facility owner and operator and certifying PE, owners and operators have some flexibility with regard to the secondary containment requirement.
As a result of EPA's response letter, persons in the industry with responsibility for health, safety and environmental compliance issues have a lot of work ahead of them. It will be particularly difficult to implement EPA's position that "parked refuelers" must have sized secondary containment such as dikes or catch basins to contain spills from largest compartment of truck. Because EPA recognizes that it is impracticable to install secondary containment around refuelers that are engaged in fueling operations, facilities with 24 hour operations may be luckier — arguably the refuelers are always engaged in fueling activity because they are always on stand-by status. However, bear in mind, that if a facility determines that it is impracticable to install secondary containment during fueling operations, the facility must meet the following requirements: 1) the facility's SPCC plan must demonstrate the impracticability, 2) the facility must have an oil spill contingency plan in accordance with 40 CFR Part 109 and 3) the facility must have a "written commitment of manpower, equipment and materials required to expeditiously control and remove any quantity of oil discharge that may be harmful, i.e. a contract in place with an emergency responder. (See 40 CFR 112.7(d)).
When considering impracticability arguments under the SPCC rules, EPA focuses on space limitations and safety concerns that prevent secondary containment from being installed in specific areas. For example, EPA's response to questions about impracticability from the EPA Small Business Ombudsman said this about impracticability:
A determination of impracticability from an engineering standpoint involves examination of whether space or other geographic limitations of the facility would accommodate secondary containment, or if local zoning ordinances or fire prevention standards or safety considerations that would not allow secondary containment would defeat the overall goal of the regulation to prevent discharges as described in § 112.1.
Secondary Containment Planning in the Future
EPA has extended the compliance dates with the final SPCC regulations discussed above until February 17, 2006, to amend an existing SPCC Plan and until August 18, 2006, to implement the Plan. However, because the Agency's position is that the secondary containment requirements have been in place for mobile refuelers since 1974, there is no extension for compliance with the secondary containment requirements for refuelers. Craig Matthiessen indicated that the EPA Regions would not delay enforcement actions until the comprehensive regional guidance mentioned in his letter is issued in August 2005. Therefore, aviation facilities should begin to examine their mobile refueler parking situation. They need to ensure that parked refuelers, which are "not engaged in, or traveling to or returning from fueling activities," are parked in areas of secondary containment. Engineers and consulting firms need to develop creative and low cost methods for the design and installation of secondary containment in these areas. These could consist of paneling systems, curbing or temporary booms that can withstand heavy truck traffic and operator error (such as failing to close curbing gating). Solutions may include:
Engineers, environmental personnel, and aviation consultants implementing SPCC regulations never dreamed that fuel delivery vehicles used to fuel aircraft would be considered "mobile or portable oil...
Environmental attorney Bonni F. Kaufman interprets the latest changes to the Spill Prevention Control and Countermeasure Rule by EPA.
By John F. Infanger, Editorial Director Consultant perspective: EPA, the final rule, and mobile fuel trucks The Environmental Protection Agency is in the midst of making its final rule on Spill...