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EPA Finalizes Oil Spill Rule, Proposes to Extend Compliance Deadlines in Streamlining Effort

February 3, 2009
In late 2008, EPA finalized amendments that streamline requirements under the Spill Prevention, Control, and Countermeasure (SPCC) rule and proposed revised compliance deadlines under the rule.  A construction site with aboveground storage capacity of more than 1,320 gallons of oil (counting only tanks of 55 gallons or greater) is subject to EPA's SPCC rule if a spill could reasonably be expected to discharge oil to U.S. navigable waters or adjoining shorelines.  In a related rule, EPA revised the definition of "navigable waters" of the United States, as the term applies to the SPCC rule, to comply with a recent court decision. Under the amendments, EPA exempted hot-mix asphalt and hot-mix asphalt containers from SPCC requirements, thereby allowing construction site operators to exclude silos of hot-mix asphalt from the total oil storage capacity calculation for any given job site.  EPA will, however, continue to regulate asphalt cement (AC), asphalt emulsions, and cutbacks (which are not hot-mix asphalt), but the notice clarifies the flexibility contained in the current SPCC rule regarding these asphalt materials.
On January 29, in accordance with the January 20, 2009, White House memorandum entitled "Regulatory Review" and the Office of Management and Budget memorandum entitled, "Implementation of Memorandum Concerning Regulatory Review," EPA delayed the effective date of these SPCC amendments to April 4, 2009 (instead of February 3, 2009) so that these rules can be reviewed and approved by the administration of President Barack Obama.  EPA is requesting public comment on the delay of the effective date.
Streamlined SPCC Provisions As for the streamlining provisions that will benefit contractors, the rule provides an SPCC Plan  template that certain low-risk construction sites and other "qualified facilities" may use for self-certification, allows construction site owners and operators to use alternative spill control measures to meet certain rule requirements (i.e.,  facility diagram, security measures, and integrity testing) without obtaining prior approval from a Professional Engineer (PE), amends the general secondary treatment requirement, among other things. In prior comment letters, AGC asked EPA to consider all of these rule changes to ease the compliance burden on construction companies covered by the program. EPA finalized a separate reform rule in December 2006 to exempt the fuel and fluid tanks used to power the movement of construction equipment from the SPCC rule and to allow (for the first time) self-certified SPCC Plans on certain low-risk construction sites, in lieu of review and certification by a PE, per AGC's recommendations.  Sites that qualify for this streamlined requirement are called "qualified facilities."  Other 2006 rule amendments include:
  • An alternative to the general secondary containment requirement for qualified oil-filled operational equipment.
  • Exemption of mobile refuelers from the sized secondary containment requirements for bulk storage containers.
Compliance Deadlines In a related action, EPA proposed to extend the deadlines by which facilities must prepare and implement SPCC plans to allow covered facilities the opportunity to incorporate the new revised plan requirements into their plans. Under the proposal, facilities will need to incorporate the revisions in their plans by November 20, 2009.  Since the first significant round of SPCC revisions-back in 2002-EPA has REPEATEDLY extended the compliance dates for active construction sites to update (or for brand new sites to prepare) and implement SPCC Plans that comply with all revised requirements. The 2002 SPCC amendments were originally intended to be effective immediately, but EPA extended that date by 12 months. A second extension was issued in 2003, which would have made companies comply by October 17, 2004.  On August 11, 2004, the Agency extended the compliance date by another 18 months, to February 17, 2006.  As that date approached, EPA finalized yet another extension, to October 31, 2007.  But before it took effect, the date was again moved up to July 1, 2009. Currently, it looks like the date will once again change to November 20, 2009. Note that owners or operators of construction sites in operation before August 16, 2002, currently are required to have (and maintain) an SPCC plan in accordance with the 1973 SPCC rule.  Such sites will be required to revise and implement updated SPCC plans (to meet the new 2006 and 2008 amendments) by November 20, 2009 - under the proposed compliance date extension. 
In accordance with the January 20, 2009, White House memorandum entitled "Regulatory Review," EPA has withdrawn the SPCC Compliance Dates Final Rule (just signed in mid-January) from the EPA Web site and from publication within the Federal Register, pending further Agency review.
Definition of Navigable Waters On November 26, 2008, EPA published a direct final rule in the Federal Register to revise the definition of "navigable waters" of the United States, as the term applies to the SPCC rule, to comply with a recent court decision. Effectively immediately, EPA has restored its original 1973 definition of "navigable waters" as follows-
  1. All navigable waters of the United States, as defined in judicial decisions before passage of the 1972 Amendments to the CWA and tributaries of such waters,
  2. Interstate waters,
  3. Intrastate lakes, rivers, and streams that are utilized by interstate travelers for recreation or other purposes, and
  4. Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.
The 1973 definition replaces the much broader definition that EPA had adopted in its July 2002 revisions of the SPCC program.  This final rule does not amend the definition of "navigable waters" in any other EPA program (e.g, stormwater permit program or the water/wetlands permit program). See related article in this issue of the Observer. More information is available on EPA's SPCC rule Web site at http://www.epa.gov/emergencies/content/spcc/index.htm.  To report and oil or chemical spill, call the National Response Center at (800) 424-8802.
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