New Requirements Under the SPCC Rule to Become Effective January 14, 2010

January 7, 2010

On November 13, 2009, U.S. EPA published final amendments to the Spill Prevention, Control and Countermeasure ("SPCC") rule for facilities that store or use oil above certain quantities. The amended rule clarifies certain provisions, tailors some requirements to particular industry sectors and, for some "qualified facilities," provides streamlined plan requirements.  Many of the amendments were to become effective on February 3, 2009, but the effective date was delayed to allow for further regulatory review.  The final rule becomes effective on January 14, 2010. 

Significant changes include streamlined plan requirements for "Tier I" facilities. Tier I and Tier II facilities are subsets of "qualified facilities." The 2006 amendments to the SPCC rule defined a "qualified facility" as one with an aggregate aboveground oil storage capacity of 10,000 gallons or less, where there has not been (1) a single discharge of oil exceeding 1,000 gallons, or (2) two discharges exceeding 42 gallons, within any 12-month period in the three years prior to the SPCC plan certification date (or from the date the facility became subject to the SPCC regulations if it has operated for less than three years). "Qualified facilities" are permitted to self-certify their SPCC plans without the review and certification of a licensed Professional Engineer ("PE"). The 2006 amendments also allow owners or operators of qualified facilities to use "environmentally equivalent measures" or to make an "impracticability determination" for certain requirements, provided these alternatives are certified by a PE. 

Under the amended rule a Tier I facility is defined as a qualified facility that does not have any aboveground oil storage containers with a capacity of greater than 5,000 gallons. If a qualified facility has a single container with an aboveground storage capacity of greater than 5,000 gallons, it is a Tier II facility and the owner or operator must complete an SPCC Plan in accordance with the regulations. The owner or operator of a Tier II facility is still permitted to self-certify the plan without a PE. Tier I facilities, however, have the option of completing and implementing a streamlined, self-certified SPCC template instead of preparing a full SPCC plan. The template is a form attached as an appendix to the amended rule.  The SPCC template eliminates or modifies certain requirements that typically would not apply to facilities that store or handle smaller volumes of oil, such as those related to transfers from loading racks.

The final rule also revises the general secondary containment requirements. In determining the method, design and capacity for secondary containment, an owner or operator need only address the typical failure mode and the most likely quantity of oil that would be discharged. The amendments clarify that the general secondary containment requirements allow for both active and passive containment measures to prevent a discharge to navigable waters or adjoining shorelines. The deployment of weirs, booms, or other barriers is an example of an active containment measure. Passive containment measures would include the construction of curbing or retention ponds. The new rule provides an expanded list of examples of acceptable secondary containment. 

In addition, there are new security provisions that replace the former prescriptive requirements such as mandatory fencing of the facility. Now, the owner or operator must describe in the SPCC plan security arrangements tailored to the individual facility.  This would include documenting how access to oil handling, processing, storage, pumps and connections, and flow and drain valves, is controlled and the appropriateness of facility lighting.

The final rule amends the dates by which a facility must prepare or amend its SPCC plan to conform to the new requirements: 

  1. A facility that was in operation on or before August 16, 2002 must have an SPCC plan in place and implemented, and must continue to maintain the plan. The facility also must make any necessary amendments by November 10, 2010. 
  2. If the facility became operational after August 16, 2002, but before November 10, 2010, it must prepare and implement a plan by November 10, 2010. If a facility already has a plan, it must make any necessary amendments by November 10, 2010. 
  3. If the facility becomes operational after November 10, 2010, it must have its SPCC plan in place and implemented before beginning operations.

It is recommended that owners and operators who have SPCC plans, or have reason to believe that the SPCC rule applies to their facility, evaluate how they may be affected by the amendments to the SPCC rule. The plan must be completed (or modified) and implemented no later than November 10, 2010. Jeffery A. Culver, Kevin N. McMurray or any other attorney in the Environmental Practice Group at Frost Brown Todd LLC are available to assist you with determining the requirements for your facility. 

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