EPA May Require Spill Prevention, Control and Countermeasure Plan

The Clean Water Act (CWA), as amended after the Exxon Valdez spill by the Oil Pollution Act of 1990, imposes oil spill planning requirements on onshore and offshore facilities involved in the handling and transport of oil. These facilities may be required to prepare and implement a Spill Prevention, Control and Countermeasure (SPCC) Plan (and perhaps a more detailed Facility Response Plan). During 2001-2011, EPA adopted a series of significant changes to its SPCC Plan regulations, requiring compliance by most facilities no later than November 10, 2011.

These planning requirements apply only to facilities and vessels that can discharge oils into "waters of the United States"—sometimes referred to as "navigable waters." Not surprisingly, EPA established expansive interpretations, which for decades allowed it to regulate a wide range of activities. The US Supreme Court upended these interpretations in a series of decisions beginning in 2001 (beginning with Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], in which the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters—such as “prairie potholes,” mudflats, and freshwater seasonal ponds. (I blogged about the latest joint proposal by EPA and the Corps here).

Which Facilities Are Required to Prepare SPCC Plans?

CWA requires the owner or operator of a non-transportation-related facility (onshore or offshore) that drills, produces, gathers, stores, processes, refines, transfers, distributes, or consumes oil and oil products to prepare an SPCC Plan, if it also meets both of the following criteria:

Because of its location, the facility can reasonably be expected to discharge oil in harmful quantities into or upon navigable waters or adjoining shorelands. EPA defines harmful quantities as discharges of oil that violate applicable water quality standards, or cause a film or sheen upon or discoloration of the surface of the water, or deposit a sludge or emulsion beneath the surface of the water (the "sheen test").
The facility meets any of the following storage capacity criteria:

More than 42,000 gallons total underground storage capacity, not counting any such capacity that is regulated by an underground storage tank (UST) program.
More than 1,320 gallons of aboveground storage capacity, not counting any container smaller than 55 gallons; or that is a “motive power container” (i.e., an onboard bulk storage container used primarily to power a vehicle or ancillary onboard equipment); or specified container (hot-mix asphalt or hot-mix asphalt container, container for heating oil used solely at a single-family residence, or pesticide application equipment and related mix container).

Smaller facilities can qualify for streamlining or reduction of some requirements if they meet applicable conditions:

Tier II facility:

Has had no single discharge exceeding 1,000 U.S. gallons, and no two discharges each exceeding 42 U.S. gallons within any 12-month period in the three years prior to the self-certification date, or since becoming subject to part 112 if the facility has been in operation for less than three years.
Has aggregate aboveground storage capacity of 10,000 gallons or less; or

Tier I facility:

Meets the Tier II requirements and has no individual aboveground storage container larger than 5,000 gallons.

What Are SPCCs Compliance Requirements?

Most SPCC Plans must include at least the following elements:

Discussion of compliance with oil spill planning requirements, including demonstration of compliance with applicable requirements or demonstration that any non-compliant aspects provide “equivalent environmental protection”.
Facility description, including a facility diagram that identifies all fixed containers (including exempt containers), transfer stations and connection pipes, and identification of the type(s) of oil in each container.
If there is a “reasonable potential for equipment failure,” a prediction of the direction, flow rate and quantity of oil that could be discharged by each type of failure.
Contact list and phone numbers for the facility response coordinator, National Response Center, cleanup contractors with an agreement for response, and all appropriate agencies that must be contacted in case of a reportable discharge.
Appropriate containment and/or diversionary structures or equipment to prevent discharges, including means to prevent a discharge from primary containment from escaping before cleanup can occur (alternative planning may be used if these measures are not practicable at the facility).
Contingency plans covering discharge discovery, response, and cleanup.
Written procedures for inspection and testing, and provisions for signatures by appropriate inspectors or supervisors, and record keeping for at least three years.
Designation of a person at each facility who is accountable for discharge prevention and who reports to facility management.
Training for oil-handling personnel in: operation and maintenance of equipment to prevent discharges; discharge procedure protocols; applicable pollution control laws, rules, and regulations; general facility operations; and the contents of the facility’s SPCC Plan.
Security (especially measures to secure and control onsite areas, and lighting).
Additional measures addressing any loading/unloading racks, changes involving field-constructed aboveground containers, and “oil-filled operational equipment” (such as hydraulic or lubricating systems, or transformers).
Discussion of any additional discharge prevention and containment procedures, and facility compliance with any other applicable requirements.

EPA requires that each SPCC plan be reviewed and evaluated at least every 5 years, or after significant releases or changes in facility activities. Most SPCC Plans must be certified by a professional engineer (PE), but EPA allows the owner or operator of a qualified facility to self-certify the facility’s SPCC Plan, if additional criteria are met.

Self-Assessment Checklist

Most facilities presently subject to SPCC plan requirements should have revised their plans by November 10, 2011, to comply with regulatory revisions adopted in the preceding years. Depending on how the continuing efforts to re-define "waters of the United States", additional facilities may or may not become subject to these requirements within the next several years. It's worth considering whether any of your organization's facilities may reduce harmful quantities of oil, and if so whether such a release might enter waterways or otherwise harm the environment.

Does my organization have any facilities presently required to implement SPCC plans?

If so, does each facility have such a plan?
If so, it the plan has been created or recertified since 11/10/11 (or different deadline, if one applies), does it comply with EPA's latest SPCC plan requirements?

Does my organization have any facility that is not presently required to have an SPCC plan, but meets criteria that may subject it to this requirement after EPA finalizes revisions to the definition of "waters of the United States"?

Does total storage of oil meet the underground and/or aboveground storage threshold quantities?
Is it located where a release of oil could reach a waterway?

Where Can I Go For More Information?

EPA SPCC Plan webpage
EPA “Spill Prevention, Control, and Countermeasure (SPCC) Guidance for Regional Inspectors”
EPA's "waters of the United States" webpage (information including latest
proposal)

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

Audit, Compliance and Risk Blog