EPA Extends Deadline To Meet Federal Oil Spill Planning Requirements by One Year

The U.S. Environmental Protection Agency (EPA) recently revised the compliance deadline for the Spill Prevention Control and Countermeasure (SPCC) rule, which affects some construction sites and hot-mix plants. All facilities (i.e., sites) storing over 1,320 gallons of "oils" either by aggregate (i.e. > 55 gallon drums) or single tank capacity must comply with federal EPA regulations (40 CFR Part 112) by November 10, 2011.  The new deadline gives owners or operators of regulated sites an additional year's time to prepare and implement an SPCC Plan. This is the seventh time in as many years that EPA has extended the SPCC compliance dates. 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.  The rules require all regulated 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.  AGC has been working with EPA for many 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.  EPA finalized amendments to the SPCC rules in 2006 and 2008 that 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, 2011, compliance deadline for regulated construction sites to prepare and implement SPCC Plans that meet all of the current requirements. The SPCC Plan extension does not remove the regulatory requirement for owners or operators of regulated sites in operation before August 16, 2002, to have an SPCC Plan in place now (based on the 1973 rule) and update that Plan (to meet all new provisions) by Nov. 10, 2011.  According to EPA, the most recent extension is needed to give owners/operators of regulated sites time to fully understand and act on the December 2008 amendments to the SPCC regulations - implementation of those amendments was delayed for nearly a year - as well as the clarifications developed by EPA during the course of litigation settlement proceedings (69 FR 29728).  Noteworthy rule revisions provide regulatory relief for "low-risk sites" that store smaller quantities of oil, including the ability to develop "self-certified" SPCC Plans (in lieu of PE-certification) and use EPA's SPCC Plan template to comply with the SPCC regulation. In addition, EPA exempted hot-mix asphalt (HMA) and HMA containers from SPCC rule applicability in their December 2008 amendments, thereby excluding silos of HMA from the total oil storage capacity for any job site.  Per AGC's recommendations, this exemption is warranted because an HMA discharge would not "flow" to reach navigable waters or adjoining shorelines. Storage of liquid asphalt cement, however, is still regulated under SPCC due to its potential to flow at elevated temperatures. Regulated Construction Sites According to EPA's 2005 SPCC Guidance for Regional Inspectors, 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 also lists factors to 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. Such factors include whether on-site conduits, such as sewer lines, storm sewers, and certain underground features (e.g., power or cable lines, or groundwater) could facilitate the transport of discharged oil off-site to navigable waters. EPA plans to update its SPCC Guidance for Regional Inspectors to address the most recent revisions to the SPCC rules. Until these revisions are made, the Guidance will remain the most authoritative exposition of the agency's view of the application of the rules, the role of the EPA inspector in reviewing and evaluating a facility's compliance with performance-based SPCC requirements, and the basis of a consistent nation-wide approach to SPCC policy and interpretation.   More information on the rule:  http://www.epa.gov/emergencies/content/spcc/compliance_dates.htm