Active construction sites that store certain quantities of "oil" must prepare and implement Spill Prevention Control and Countermeasure (SPCC) Plans by November 10, 2010, to prevent the discharge of oil to navigable waters, per a U.S. Environmental Protection Agency (EPA) rule published last week. This action once again extends the compliance dates for construction sites and other "facilities" covered by EPA's oil SPCC requirements - and comes just in time to wipe out the prior July 1, 2009 deadline. Following is a description of the SPCC program deadlines, the construction sites subject to the rules and EPA's streamlined amendments that resulted from AGC's multi-year effort to make the program more workable for contractors.
The new November 10, 2010, compliance date is the seventh in a series of extensions since 2002. The date, in this case, is the deadline by which EPA requires any regulated construction site to have a comprehensive SPCC Plan detailing how the contractor will store oil and both control and clean up any spills. The extension gives contractors another 16 months (beyond the previous deadline of July 1, 2009) to understand the revised SPCC requirements (as they have been amended in 2002, 2006, 2008 and further in 2009) and to meet their compliance obligations. Regulated sites that break ground after November 10, 2010, need SPCC Plans in place before beginning operations.
The latest extension must not be confused with a separate rulemaking to further amend the SPCC regulations. On Dec. 5, 2008, EPA published significant revisions to the SPCC rules; however, the effective date of that final rule has been delayed until Jan. 14, 2010, to give the new administration time to reconsider the amendments. (Also be aware that the new administration withdrew from EPA's web site and Federal Register publication an SPCC compliance date final rule signed at the end of President Bush's term, which would have set a November 2009 deadline.) See the January 2009 issue of the Observer for more background information.
EPA has not yet decided how to proceed on the December 2008 rule amendments, but expects to promulgate final revisions to that new rule, if any, in November of 2009. (Note that the new compliance date is approximately one year from the expected publication date of those anticipated revisions.) Until any actual effective date of the Dec. 5 rule, contractors may not take advantage of its streamlined provisions (see below).
Regulated Construction Sites
The EPA rules requiring oil Spill Prevention Control and Countermeasures (SPCC) are nationwide rules that apply in all 50 states. A construction site with a total above-ground oil storage capacity of more than 1,320 gallons of oil (counting only tanks that equal or exceed 55 gallons) is subject to EPA's SPCC rules if a spill could discharge oil to U.S. navigable waters or adjoining shorelines. EPA recently 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. The rules require all such jobsites to have a comprehensive SPCC Plan detailing how the contractor will store oil and both control and clean up any spills. EPA rules also impose certain reporting requirements:
- All jobsites have to immediately report any spill of any "harmful quantity" that has the potential to reach waters of the United States to the National Response Center.
- All covered jobsites have to report all spills over 1,000 gallons as well as any two spills over 42 gallons within any 12 month period to EPA. The gallon amount(s) specified (either 1,000 or 42) refers to the amount of oil that actually reaches U.S. navigable waters or adjoining shorelines, not the total amount of oil spilled.
- It permitted contractors to self-certify their SPCC Plans (1) for certain low-risk sites and (2) for all sites with less than 10,000 gallons of oil storage capacity. The original rule required all such Plans to be reviewed and certified by a professional engineer.
- It excluded "motive power" tanks from the tanks that court toward the storage capacity of any one site, and it exempted such tanks from the rule's secondary containment and other requirements.
- For qualified operational equipment, it provided an alternative to the general requirement for secondary containment.
- It exempted mobile refuelers from the requirement for secondary containment for bulk storage containers.
- It provided an optional "template" for a streamlined SPCC Plan that a contractor can self-certify for certain low-risk sites.
- It exempted hot-mix asphalt and hot-mix asphalt containers from SPCC rule applicability, and excluded silos of hot-mix asphalt from the total storage capacity for any job site. The rule, however, continues to cover asphalt cement, asphalt emulsions and cutbacks.