As we enter 2010, the Oil Spill Prevention, Control and Countermeasure (SPCC) amendments finalized by the U.S. Environmental Protection Agency (EPA) at the end of 2008 have
finally gone into effect. Many of these amendments (and other reforms finalized by EPA back in 2006) will ease the compliance burden on construction companies covered by the federal oil spill control regulations.
The amendments respond to many of AGC's main concerns as well as the association's recommendations on how to improve the SPCC program. EPA has set a November 10, 2010, compliance deadline for regulated construction sites to prepare and implement SPCC Plans that meet all of the current requirements; however, the Agency plans to separately propose to extend the deadline because of the uncertainty surrounding the final amendments to the rule and an earlier delay of the effective date.
EPA's SPCC planning requirements cover your construction jobsite if (1) your oil storage containers (in tanks of 55 gallons or greater, including asphalt cement tanks) have a total
capacity of more than 1,320 gallons and (2) a spill could reach U.S. navigable waters or adjoining shorelines. See section on "Regulated Construction Sites" below for more details.
AGC's SPCC Reform Achievements
AGC has been working with EPA for nearly seven years to provide the Agency with practical advice and counsel on how to streamline the oil spill rules to minimize the implementation problems common to construction sites.
The original SPCC rules were published in December 1973. In July 2002, EPA amended those rules in a manner that would increase regulatory burdens and costs (e.g., new requirements for integrity and leak-testing, security and lighting, and PE-certifications). At that time, AGC began working with EPA to reduce the rule's burden on construction contractors, and to address provisions that simply do not make sense for construction jobsites. EPA made further changes to the SPCC rules via final rules published in December 2006 and December 2008.
2006 Reforms - In 2006, EPA finally made
several modifications:
- 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 count 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.
2008 Reforms - In 2008, EPA made
more changes including:
- 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.
[
NOTE: On November 13, 2009, acting under a new Administration, EPA published revisions to the December 2008 amendments. EPA retained a majority of the December 2008 rule, providing minor technical corrections to a few sections. EPA deleted only three provisions from the December 2008 amendments. Fortunately none of these changes will impact construction operations or AGC's reform work. It is also worth noting that EPA indicates in the November 2009 final rule that it expects to continue inter-Agency discussions with the Department of Transportation to clarify jurisdiction over facilities described in the February 2000 memorandum "Jurisdiction over Breakout Tanks/Bulk Storage Tanks (Containers) at Transportation-Related and Non-Transportation-Related Facilities;" and update its December 2005 SPCC Guidance for Regional Inspectors to reflect the final rule changes.]
Regulated Construction Sites
EPA's SPCC rules 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.
For purposes of the SPCC program, "oil" means oil of any kind or in any form including - but not limited to - asphalt, crude oil, cutting oil/machine coolants, dielectric fluid, diesel fuel, heating oil, gasoline, greases, hydraulic oil, lubricating oil, mineral spirits, motor oil, oil refuse, oily wastes (other than oil mixed with dredged soil), sludge, synthetic oils, turpentine, residual fuels, used oil and more.
According to EPA's
2005 SPCC Guidance for Regional Inspectors, if a construction site is regulated under the SPCC rule, it is the responsibility of the "facility" owner and operator to ensure that an SPCC Plan is prepared. A site may have multiple owners and/or operators. Factors to consider in determining which owner or operator should prepare the Plan include who has control over day-to-day operations of the facility or particular containers and equipment, who trains the employee(s) involved in oil handling activities, who will conduct the required inspections and tests and who will be responsible for responding to and cleaning up any discharge of oil. EPA expects that the owners and operators will cooperate to prepare one or more Plans, as appropriate.
EPA's SPCC guidance lists factors that a construction site operator should consider in determining whether there is a reasonable expectation of an oil discharge from a construction site to U.S. navigable waters or adjoining shorelines and if that site is subject to the SPCC rule.
SPCC Plan Compliance Deadlines
EPA has set a November 10, 2010, compliance deadline for regulated construction site operators to prepare and implement SPCC Plans detailing how they will store oil and both control and clean up any spills. However, the Agency currently states on its Web site that it plans to separately propose to extend the deadline because of the uncertainty surrounding the final amendments to the rule and an earlier delay of the effective date.
To learn more about the SPCC rule visit EPA's SPCC Web page at
http://www.epa.gov/emergencies/content/spcc/index.htm. To report an oil or chemical spill, call the National Response Center at (800) 424-8802.
For additional information, please contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.