On July 16, 2002, EPA issued a final rule amending the Oil Pollution Prevention regulation promulgated under the authority of the Federal Water Pollution Control Act. This amended regulation, the culmination of efforts that have been underway since the early 1990s, addressed requirements for Spill Prevention, Control and Countermeasure Plans that covered issues related to Facility Response Plans part of the regulation. In a highly unusual turn of events, on the same day the EPA notified those impacted that it will put the rule on hold for an undetermined period for further review. This seems to acknowledge what an industry lawsuit contended ‘ the amended rule was flawed to the point of having a major impact on the viability of many bulk plants and some terminal operators.
The SPCC component has the most impact on downstream petroleum distributors and applied to owners or operators of facilities that drill, produce, gather, store, use, process, refine, transfer, distribute or consume oil and oil products. The SPCC regulations require facilities that either have at least 1,320 gallons in aboveground storage capacity and/or are capable of impacting U.S. waterways prepare an engineered-certified plan addressing spill prevent remediation efforts. Solutions were specified as part of the rules, including a sweeping expansion of secondary containment requirements.
The EPA noted there were many reasons to amend the rule. One goal was to clarify the language and organization of the rule as required by presidential order, reducing the information collection burden on the regulated community. The rule was also seen as creating a smaller regulated community by exempting various smaller operations and operations that are already regulated, such as companies with underground storage tanks and wastewater treatment facilities. The EPA estimated that the changes would reduce the regulatory burden by approximately 40 percent and result in some 55,000 fewer regulated facilities. The industry disagreed.
In what the EPA called a ‘clarification,” it changed the use of the word ‘should” as applied throughout the rule to ‘must.” While adding needed clarification, it also clearly states these actions are now a mandate, lessening the ability of the industry to meet the goal of the rule using its own best practices.
Almost immediately, the EPA began to consider amending the rule to address unanticipated consequences.
‘The rule that was adopted in 2002 was just not ready to go final,” said Dan Gilligan, president of the Petroleum Marketers Association of America, based in Arlington, Va. ‘The rule was being worked on, but President Clinton put out a call in his last few weeks in office promising to sign any controversial legislation that was sitting around, and it was pushed through. I think they rushed the review process, and we’ve now spent six years trying to address a lot of issues as a result.”
This open attitude towards modifying the regulation, a rarity in EPA circles, comes from several sources. The expanded scope was accidentally created by the rushed legislation and, in no small part, by a successful industry lawsuit that aimed to address a variety of other shortcoming.
‘Two things happened,” said Gilligan. ‘One, we sued them, and we had a very good argument. Secondarily, they pulled in more people than they ever thought possible ‘ bakers, electrical utilities, farmers ‘ you start hitting the farmers and they hit back with a lot of clout. When the rule came out, they viewed it as primarily applying to petroleum companies. And they have worked to make it easy for everyone but petroleum marketers, and they have clearly stated that as their focus.”
Gilligan noted that after several revisions, the current rule has, for the most part, addressed most industry concerns, and the likely final deadline has been established as July 1, 2009.
Advanced tank testing
Another aspect of the initial rule was an increased focus on AST integrity testing that specified radiograph, ultrasound and other non-destructive tank testing twice a year. Having this testing done could have run $2,000 to $20,000, especially since there are only a handful of companies positioned to provide these tests.
‘They agreed that for a shop fabricated tank, integrity testing would not be required if you can see all sides of the tank,” Gilligan said. ‘The way a leak happens is that normally you see a seep before a leak, and you can remediate a problem long before it gets serious. But you still have to test the tank bottom to make sure you are not leaking under the tank.”
Lights and fencing
Another area of concern was specific requirements related to plant security from both outside entities looking to cause harm and from unobserved leakage. The potential lighting and fencing requirements represented, in many cases, an excessive cost for the potential risk. The current version is far more flexible and far more linked to real need instead of mandate.
‘Now, if the engineer that certified the plan is convinced that adequate security is engaged, then they are not going to fight that plan,” said Gilligan. ‘The inspectors are not certified engineers. But you have to have some security plan. What they don’t want to see is they show up and not have anything to show in this area.”
Remaining secondary containment issues
There were a variety of issues relative to secondary containment, and several are still outstanding.
Where loading racks are concerned, for tank car and tank truck loading and unloading, the operator must provide a containment system capable of holding at least the maximum capacity of any single compartment of any tank car or truck loaded or unloaded at the facility.
‘The requirement is that you mush have containment for the largest compartment on a truck loaded at the rack,” Gilligan said. ‘Well, EPA statistics show that most spills at loading racks are four to five gallons on average, with the worst spills being 40 to 50 gallons. But to have to put in, say, 5,000 gallons of containment is overkill. You can’t justify it in the modern world.”
DOT rules require that a driver be within 25 feet of a shutoff valve during filling at all times. Gilligan noted that some at EPA don’t believe drivers are serious about that requirement and there could be a catastrophic spill. The EPA appears unlikely to compromise on this aspect, but a potential exception comes down to a modification of the way financial burden comes into play.
‘In our negotiated settlement in 2002, a marketer could consider issues in addition to cost,” Gilligan said. ‘These include zoning and building codes etc. Generally speaking, marketers are committed to putting in secondary containment at the bulk plant’s loading racks, but maybe they can’t get the 5,000 gallons, but they can get 1,500, and from that point it might not be financially viable. For example, we can put in the 1,500 gallons, but to reach 5,000 gallons we would have to buy the property next door, etc.”
More promising is the EPA requirement that cargo tank vehicles parked overnight at bulk facilities or other company facilities must be placed within a secondary containment area sufficient to contain a spill from the single largest compartment of a truck. This requirement, known as the sized secondary containment rule, has proved challenging to implement for petroleum marketers and heating oil dealers due to site-specific limitations and cost.
‘Prior to 2002, each region had a tremendous amount of flexibility in how they wanted to pursue SPCC,” Gilligan said. ‘Most regions are allowing mobile refueling trucks with just drip pans for under the valves, while some in the Northeast follow a worst-case failure scenario for each parked truck. It’s a ridiculous assumption that 20 trucks will have a catastrophic sidewall failure while all full at one time. They have been open-minded, generally speaking, and hopefully that will continue in this area.”
Additional good points
In addition to the revisions, the final rule did have some proactive components. As already noted, the general language was cleared up considerably, and the old rule required that all personnel at the facility be trained in the operation and maintenance of equipment to prevent the discharge of oil. Now, only oil-handling employees are required to meet training guidelines. In addition, the SPCC plan review cycle has been increased from three years to five years.
Also, the National Association of Convenience Stores was able to get early revisions exempting from regulation completely buried storage tanks, connected underground piping and underground ancillary equipment that are already subject to EPA’s UST technical standards. Facilities with an underground storage capacity of more than 42,000 gallons were regulated under the old rule. This will have the effect of essentially deleting all application of the SPCC regulations to large UST storage facilities.