Proposed Spill Prevention, Control and Countermeasure (SPCC) Rule

NCBA Staff Contact: 

Tamara Thies, Chief Environmental Counsel
202-347-0228

tthies@beef.org

The Clean Water Act requires the President to issue regulations establishing requirements to prevent discharges of oil from facilities (including farms) into waters of the United States and to contain such discharges in the event they occur.  In 2002, the EPA amended these regulations.  At that time, many farmers and ranchers came to realize, for the first time, that the SPCC regulations apply to farms. 

In the SPCC rule, EPA defines a “farm” as:  “a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during a year.”  This definition includes cattle operations.

The SPCC rule applies to owners or operators of facilities (including farms) that: (1) store, transfer, use, or consume oil or oil products; and (2) could reasonably be expected to discharge oil to waters of the United States; and (3) if the farm’s above ground oil storage capacity is greater than 1320 gallons or if the farm’s completely buried oil storage capacity is greater than 42,000 gallons.   The rule requires farms to have a Facility Response Plan (certified by a Professional Engineer “PE” – except in certain circumstances explained below) that details equipment, workforce, procedures, and training to prevent, control, and provide adequate countermeasures in the event of a discharge of oil.  There are several exemptions from the rule including: underground storage tanks subject to underground storage tank rules, containers with storage capacity less than 55 gallons, permanently closed containers, and automobile or truck fuel tanks.

Since 2002, NCBA has been working with the EPA to craft a rule that makes sense for “farms.”  On October 15, 2007, the EPA issued a proposed rule to streamline and provide alternative methods for compliance with SPCC requirements for farms.  Significantly, EPA requested comment on whether EPA’s position that any “facility” (see proposed modified definition of facility below) that has an oil storage capacity of 10,000 gallons or less in aggregate above-ground oil storage capacity can self-certify its SPCC Plan, instead of requiring the services of a PE, is appropriate for farms.  Self certification of these facilities would be possible as long as for a period of three years prior to certification the facility did not have a single discharge of oil to navigable waters exceeding 1,000 gallons, or two discharges of oil to navigable waters each exceeding 42 gallons within any 12 month period, is appropriate for farms.  NCBA’s view is that the 10,000 gallon aggregate trigger is too low.  The fact is that many farms that receive bulk fuel will have one 10,000 gallon gasoline tank and one 10,000 gallon diesel fuel tank.  Therefore, NCBA urged the EPA to adopt a 20,000 gallon threshold as reasonable and critical for farm operations when it issues its final regulations.

In order to self-certify an SPCC Plan, an owner/operator must attest that (1) he/she is familiar with the rule and has visited and examined the facility; (2) the Plan has been prepared in accordance with accepted and sound industry practices and standards and with the rule requirements;  (3) procedures for required inspections and testing have been established; (4) the Plan is being fully implemented; (5) the facility meets the qualifying criteria; (6) the Plan does not deviate from the rule requirements except as allowed and as certified by a PE; (7) management approves the Plan and has committed resources to implement it.  A self-certifying owner/operator is not allowed to include “environmentally equivalent” measures or make “impracticality” determinations unless they are reviewed and certified by a PE.  (An “environmentally equivalent” measure provides equal protection to the environment as the measure that is specified in the SPCC rule; an “impracticality” determination is allowed when a facility is incapable of installing secondary containment by any reasonable method.  However, alternative measures to prevent and contain oil discharges are required.)  But these are the only portions of the Plan that must be reviewed and certified by a PE.  The remaining portions can be self-certified.  In addition, a self-certifying owner/operator may self-certify technical changes to a SPCC Plan as long as a PE has not certified the portion being changed.  If a PE certified the affected portion of the Plan, then a PE must certify the technical change.

EPA also requested comments on whether any facility that qualifies for self-certification and has no oil storage containers with an individual storage capacity greater than 5000 gallons should have the option of completing a self-certification SPCC template in lieu of a full SPCC plan. By completing the SPCC plan template, an owner or operator of a qualified facility would certify that the facility complies with a set of streamlined SPCC rule requirements.  NCBA urged the EPA to increase the tank size for use of the self-certification template from 5000 gallons to 10,000 gallons given the tank size realities of this day and age.

EPA proposed an important modification of the definition of “facility” for farms to clarify that contiguous or noncontiguous buildings, properties, parcels, leases, structures, installations, pipes, or pipelines may be considered separate facilities.  The proposed revisions would allow an owner/operator to separate or aggregate containers to determine the facility boundaries based on such factors as ownership or operation of the buildings, structures, containers and equipment on site, the activities being conducted, and property boundaries.  This is an important modification that NCBA supports.

Owners/operators of a facility must also have a SPCC Plan for “oil-filled operational equipment” including hydraulic systems, lubricating systems, gear boxes, machining coolant systems, heat transfer systems, transformers, circuit breakers, electrical switches, and other systems containing oil solely to enable its operation; and for  “mobile refuelers” which includes nurse tanks used at farms to store and transport fuel for transfers to or from farm equipment, such as tractors or combines, and to other bulk storage containers.  EPA proposed to exempt mobile refuelers on farms from sized secondary containment requirements for bulk storage containers (i.e. containment large enough to contain the capacity of the largest compartment or container, including enough room to contain precipitation).  NCBA supports this important exemption.

EPA is expected to issue a compliance date for farms when it releases its final rule in 2008.  Meantime, farms subject to SPCC requirements on or before August 16, 2002 must maintain their plans.