EPA Overhauls Spill Plan Regulations

[August 2002]

If you store fuel in tanks you should know about the recent changes to the Environmental Protection Agency's Spill Prevention Control and Countermeasure (SPCC) rules. These rules require tank owners or operators to have structures to contain spills as well as prepare spill prevention plans that are certified by a professional engineer. SPCC rules do not just affect "smokestack industries." Many businesses and public health providers rely on emergency generators that have fuel tanks large enough to trigger regulation under the SPCC program.

Effective August 16, 2002, these major revisions bring both good and bad news for such operators. On the up side, fewer facilities will be regulated. Those with total aboveground tank capacity of 1,320 gallons or less are now exempt from SPCC regulation. Conversly, non-exempt facilities will find they have less time to prepare and implement their initial spill prevention plans, as the six-month grace period is being phased out. Beginning August 2003, SPCC plans must be prepared and implemented before tanks are fueled for the first time.

Key rule changes for non-industrial businesses with tanks are summarized below:

• Raised Thresholds. Only facilities with more than 1,320 gallons of aboveground storage capacity are subject to SPCC requirements. Only containers over 55 gallons count towards the threshold. Under the old rules, SPCC planning was required if any individual tank had a capacity over 660 gallons. The EPA estimates that 50,000 fewer facilities will be regulated.
• Regulated Underground Tanks Exempt. The new rules exempt underground tanks that are completely buried and regulated by state or federal tank programs. Note that partially buried, vaulted, and bunkered tanks are still considered above ground tanks and may still be subject to SPCC requirements.
• Temporary Tanks Are Regulated. The EPA clarified that standby, temporary, and seasonal tanks count in the facility threshold and must be included in planning if an SPCC plan is required.
• Plans Must be Prepared Before Operations Begin. Under the old rules, a facility had six months to prepare and a year to implement the SPCC plan. Under the new rules, SPCC plans must be prepared and implemented before the facility begins to store or use oil including start-up or testing before normal operations begin. The shorter deadline is being phased in over the next year. Facilities that become regulated between August 16, 2002 and February 17, 2003 still have six months to prepare the SPCC plan. Facilities that become regulated between February 18, 2003 and August 18, 2003, must have the plan prepared and implemented before August 18, 2003.
• Longer Plan Review Period. The revised rules extend the time period for periodic SPCC plan review from 3 to 5 years. The facility owner or operator must document in writing that the plan was reviewed and state whether the plan needs amendment. The EPA clarified that technical revisions must be certified by a professional engineer and administerial revisions may be made by the facility. SPCC plans must still be amended if there are changes that could affect the facility's risk of a discharge such as changing standard operating procedures or replacing or moving tanks or piping. Amendments must still be made and implemented within six months of changes.
• Discharges that Trigger Additional Reporting Requirements Defined. Under the new and old rules, facilities that have a 1,000 gallon spill or two reportable spills in one year must submit information to the EPA regarding spill prevention practices. The revised rule specifies that 42 gallons is the threshold for counting two spills in one year. Note this change does not affect the size of a spill that must be reported to state or federal agencies, but it changes when a facility must provide additional information to the EPA. Spills less than 42 gallons may still be reportable.
• Training Requirements Clarified. The new rules clarify that only "oil handling" personnel must be trained and specify that the minimum training agenda must include tank system pollution control laws, general facility operations and the contents of the SPCC plan. Training must be frequent enough to assure adequate understanding of the plan. At least once a year, the facility must have a "discharge prevention briefing" for oil handling personnel that review any equipment failures, releases, new equipment and the SPCC plan.
• Recordkeeping Is More Flexible. The revised rules provide more flexibility in recordkeeping by allowing facilities to demonstrate compliance with inspection, testing, and training through customary business records rather than specific forms kept within the SPCC plan. However, a facility still must document compliance and so in practice, it may be best to prescribe the records needed and keep them with the SPCC plan so the records are readily available during an inspection.
• Guidelines Become Requirements. The revised rules remove the squishy "guideline" language of the old rules and clearly state that secondary containment and other technical standards are requirements. The EPA has always interpreted the regulations as mandatory. The revised rule now reflects that interpretation.
• More Plans Must Be Onsite. Plans must be kept on site if the facility is staffed four or more hours per day. The old rule was eight hours per day. As a best management practice, a copy of the SPCC plan should always be available at the facility.
• Plan Must Include Tank Fueling Areas. Tank fueling areas must provide containment for spills. Under the old rules, a well prepared SPCC plan also would have considered fueling as one of the potential spill scenarios.

For further information, please contact:

Lynn Manolopoulos, Bellevue, (425) 646-6146, lynnmanolopoulos@dwt.com
Gerry Hinkley, San Francisco, (415) 276-6530, gerryhinkley@dwt.com

This Environmenal Law Alert is a publication of the Environmental Law Group of Davis Wright Tremaine LLP. Our purpose in publishing this Alert is to inform our clients and friends of recent developments in environmental law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

Copyright © 2002, Davis Wright Tremaine LLP.

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