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# 4301 North Fairfax Drive \* Suite 425 \* Arlington, VA 22203-1616 (703) 236-2300 \* FAX (703) 236-2301

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December 14, 2007

Via eDocket

United States Environmental Protection Agency

EPA Docket

Mail code: 2822T

1200 Pennsylvania Avenue, NW

Washington DC 20460

**Re: Docket ID No. EPA-HQ-OPA-2007-0584. Oil Pollution Prevention;
Spill Prevention, Control, and Countermeasure Rule Requirements -
Amendments.**

The USA Rice Federation (USA Rice), located at 4301 N. Fairfax Drive,
Suite 425, Arlington, VA 22203, is the global advocate for all segments
of the U.S. rice industry with a mission to promote and protect the
interests of producers, millers, merchants and allied businesses. USA
Rice members are active in all major rice-producing states: Arkansas,
California, Florida, Louisiana, Mississippi, Missouri and Texas. The USA
Rice Producers' Group, USA Rice Council, USA Rice Merchants' Association
and the USA Rice Millers' Association are members of the USA Rice
Federation. USA Rice appreciates the opportunity to comment on this
issue.

Although we are pleased with some of the changes EPA has initiated in
regard to the 2007 SPCC Proposed Rule, outstanding issues do remain.  We
have serious concerns about these issues that we hope to address here
with the agency. USA Rice will continue to work with EPA on creating a
rule practical and relevant to our industry. Once that is established,
we will work with EPA to encourage compliance for all our members; to
inform, educate, and train as necessary.

USA Rice appreciates the opportunity to comment on this proposal and
looks forward to working with the agency in the future.

**[GENERAL COMMENTS:]{.underline}**

USA Rice appreciates the agency's acceptance of a definition of a farm
that was presented to the agency in past comments by USDA and farm
groups. We also appreciate the proposed exemption of home heating oil
tanks and pesticide sprayers and mix containers from the rule. We also
support the proposed exemption from regulations for loading racks,
agreeing with EPA that loading racks are not a usual feature of a farm.

In addition, we ask that EPA once again take note that farms are not
like other regulated entities in the SPCC realm that the agency has been
dealing with since 1973. Farms will not have 'environmental manager'
personnel ready to follow thru on this new regulation. Neither will they
necessarily have large financial resources to divert from other projects
to devote to this regulation. Most resources must be devoted annually to
inputs to the farm including seeds, fertilizers, pesticides and fuels.
Whereas other types of businesses may have financial resources built up
over years of profits, most farm profits are reinvested into the farm
for the inputs needed for the following year.

On another issue, when the agency does propose a new deadline, the date
must allow for the problems of farming. Producers who have to comply
with the rule in such things as building berms, etc, will not be able to
do so during ag seasons such as planting and harvesting. These important
seasons severely restrict the time producers have to work on auxiliary
projects. Furthermore, it will take time for farms with multiple,
spread-out tanks, to comply with constructing secondary containment or
implementing other parts of the rule. These farms are not like
businesses where one berm can be put around all the facilities' tanks.

## 

In discussions with both EPA and USDA, the USA Rice has learned that
when new rules are promulgated, information is disseminated, but no real
data exists on how long it truly takes an industry to fully understand
and come into compliance with new requirements.

EPA publishes final rules in the federal register, emails stakeholders
and often communicates in some form with trade organizations. The USDA
publishes information in local newspapers, purchases radio time,
participates in mailings and often has meetings with leaders in local
communities.

Unofficial EPA and USDA estimations for penetration of an industry
sector with information on new regulatory requirements range from three
months to one year for a full understanding of new requirements
depending on the complexity of the rule. Therefore, once EPA publishes a
final rule, we believe at a minimum, an additional two years would be
necessary for compliance for a total of three years.

Determining which farms have to comply with all or part of the final
rule, and how they will do it, will take some time. USDA and the states
should be given timelines to facilitate implementation and compliance
before EPA enforcement can take place. This additional time will provide
farmers and others the opportunity to work within their

organizations and with appropriate government agencies, including USDA,
regarding the possible development of a model plan or set of guidelines
that could be utilized to meet such requirements.

We also urge EPA to set up a hotline for producers seeking information
and clarity on the rule and how it applies to their operation. In
anecdotal USDA examples, hotlines were operational for approximately two
years in conjunction with other educational programs to ensure maximum
compliance. The hotline allowed producers to inquire about deadlines,
report issues and problems, and clarified requirements. We also strongly
urge that the hotline be able to send out 'plain-English' documentation
to back up their oral advice.

Furthermore we seek the creation of a website dedicated specifically to
SPCC requirements, offering 'plain-English' information on rules,
clearly stating deadlines, providing templates and making clear the
formal review, appeal and mitigation process.

## 

## ISSUE-SPECIFIC COMMENTS

**[Issue 1.]{.underline} EPA's self-certification criteria (Alternative
Qualified Facility Eligibility Criteria for Farms) are nonsensical when
compared to the leeway given to small production oil facilities.**

First, the 10,000-gallon trigger causes great concern for those within
the agricultural industry. Many farm operations would exceed the
proposed 10,000-gallon threshold, even with the new proposed definition
of flexibility. Therefore, USA Rice urges the EPA to adopt a 20,000
-gallon threshold as reasonable and critical for farm operations. EPA
has still not produced the data needed to determine a meaningful trigger
for all sectors of

agriculture -- field flood irrigation, center pivot irrigation, crop
farms, ranches, livestock operations, related agribusinesses, etc. -
which pose similar low risks for spills and are often seasonal in
nature.

We understand that the 10,000-gallon trigger was established in the SPCC
rules to remain consistent with those in other regulations related to
oil discharges, like the National Oil and Hazardous Substances Pollution
Contingency Plan (National Contingency Plan or NCP). The NCP was
developed in 1968 as a response to a massive oil spill from the oil
tanker *Torrey Canyon* off the coast of England. Revisions to the NCP,
of which the most recent was finalized in 1994, were again in response
to a massive spill, this time the *Exxon Valdez.* Given its unique
characteristics and lack of any significant spill history, the
agriculture industry cannot be compared to the spills of huge oil
tankers nor should it be regulated as such. Before any rule is applied
to our industry, EPA must evaluate the threat (if any) the industry
presents and establish rules applicable to the industry, including
appropriate triggers. The National Oil and Hazardous Substances
Pollution Contingency Plan (and it's threshold) has little or no
relevance to agriculture.

As fuel prices continue to stay high or increase, it is also more
fiscally responsible for growers to seek tanks of a size that can accept
bulk orders from their local supplier. The agency's action on a
10,000-gallon threshold (with the criteria of two, 5,000-gallon tanks)
limits that response as growers may not be able to move to bulk orders
and save money because the loss of a self-certification plan would
require the hiring of Professional Engineers (PEs) at substantial costs.
By limiting choices among growers EPA will increase costs on a segment
of the U.S. economy that has the least power to pass the costs along to
their customers.

Also, growers will often buy used tanks for application in the future if
expansion is warranted. These empty tanks, along with seasonal-use tanks
that stand empty part of the year, may take the facility capacity over
10,000 gallons. Why are they counted for a low capacity threshold on
farms when the same capacity or greater is ignored at oil production
facilities? That leads us to our next point.

Second, EPA establishes that a facility, including agriculture, with an
above ground storage capacity of 10,000 gallons and that passes certain
spill criteria may be eligible for a self-certification plan in lieu of
a PE certified plan. EPA then asks if a higher threshold, or a change in
criteria, is warranted for farms.

Farming is a fairly unique industry in many ways. Unlike other standard
industries agriculture varies greatly in what it produces and how it
does so. The 'facilities' vary greatly in size, shape, location,
integrity, geography, production methods, production equipment, costs,
profits, managerial structure, ownership, leasing structure, etc. It is
the one industry where change in weather, for as little as one day or
night, can ruin an entire year's work and profits. Most farms do not
have extra staff on hand to designate as environmental managers nor can
they afford to hire one. They will not have a corporate budget to pay
for secondary containment and PE's for each of their tanks. EPA's
efforts to define agriculture in relation to the heavy industries that
the agency is more comfortable with will only cause problems for
agriculture and eventually the environment. We believe that the agency
needs to address farm self-certification with different criteria and a
higher capacity threshold.

In further consideration of the 10,000-gallon threshold for qualified
facilities however, the agency offers small oil production facilities a
self-certification plan with similar criteria but not limited to a
storage capacity threshold "because they would likely have greater than
10,000 gallons in aggregate aboveground oil storage capacity." The rice
industry does not understand how a facility that produces oil on a
constant basis can be granted such leeway while farms are not. We also
do not understand how EPA can apply a 10,000-gallon threshold to
agriculture while ignoring it in another industry ("...on an
approach...for an oil production facility...to be considered a qualified
facility, notwithstanding the tank storage capacity at the facility.").
In irrigated agriculture, many tanks that run the irrigation systems
stay empty a large part of the year. They are only used at times when
irrigation is needed and then they are often used extensively requiring
constant resupply. Once the season is past the tanks stand empty until
time to refill them

for the next season. At the prices of fuel, growers cannot afford to
keep seasonal tanks full year round. Not only does this tie up money
that is needed elsewhere, it prevents the grower from playing the market
and ordering fuel at times of lower prices, and it increases the
likelihood of theft of the fuel.

As mentioned before, agricultural-use tanks are also purchased at
auctions and sales and stockpiled against future need. For small oil
production, EPA proposes to ignore tank capacity because the
owner/operator "...provides adequate container capacity at his facility
to ensure sound and continuous operations...". The Agency does not offer
the same leeway for growers who may have extra capacity.

[Issue 2.]{.underline} Definition of "facility" needs more
clarification.

USA Rice appreciates the Agency's recognition of the fundamental nature
of farming \-- that farming operations are not necessarily one fixed
location but can be a collection of fields which may be contiguous *or*
noncontiguous.

The Agency's most recent proposal modifies the definition of "facility"
to clarify that contiguous or non-contiguous building properties,
parcels, leases, structures, installations, pipes, or pipelines may be
considered separate facilities. The proposed revisions will allow an
owner or operator the flexibility to determine facility boundaries based
on many factors, including ownership or operation of the buildings,
structures, containers, and equipment on the site, the activities being
conducted, property boundaries and other relevant considerations unique
to the agricultural industry. USA Rice is very supportive of this
proposed revision as it will allow for the variations in operational
structures that are common in farming. However, within this proposal, we
urge the Agency to further clarify its intent for future reference in
the guidance provided to inspectors to ensure the fewest number of
'differing interpretation' incidences during implementation. Also, we
urge the Agency to make clear to the agricultural industry and
inspectors, the process and timeline for which any disagreements
resulting from this proposed flexibility will be addressed. We ask that
the Agency consider that at any given time, a producer may be planting,
harvesting or engaged in some other time sensitive activity during the
year. To that end, we urge that a timeframe no shorter than 120 days be
provided for a producer to address any possible compliance concerns,
including but not limited to differences of opinion on a facility
determination, identified by an inspector.

**[Issue 3]{.underline}. Self-Certification Proposal/Professional
Engineer requirement will provide negligible benefits.**

Under EPA's proposed self-certification approach, facility
owners/operators of qualified facilities choosing to self-certify their
SPCC plans may not deviate from any requirement of the SPCC rule under
Sec. 122.7(a)(2) (with two exceptions) and may not make impracticability
determinations in their SPCC plans as described under Sec. 122.7(d). The
two exceptions are that facility owners/operators of qualified
facilities choosing to

self-certify their SPCC plans would have flexibility with respect to the
security requirements and container integrity testing.

While the USA Rice, in general, supports the notion of
self-certification, in order to make this option viable and meaningful
to our industry, the EPA must work with the industry to allow for more
flexibility in this option. Knowing that farming operations and other
agricultural entities vary in size, layout, topography, etc., EPA must
consider changing its position and allowing entities to self-certify
while incorporating the use of some alternative environmentally
equivalent measures and applying impracticability determinations for
qualified facilities. Without this flexibility, self-certification may
be impractical for our industry. Also, we disagree with comments made by
some in the professional engineering field regarding self-
certification. In testimony before the Senate Committee on the
Environment and Public Works (12/2005), Dr. James Corbett of the
University of Delaware stated "exempting PE certification from SPCC
plans on the basis of cost (or regulatory burden) may increase the risk
of spills from self-certifying facilities where managers without
engineering training and/or technicians do not possess a standard
professional knowledge base, ascribe to a professional code that places
public protection highest, or share individual legal liability for their
judgments."

We find it unusual that this situation has existed in rural America for
decades, yet the catastrophic events predicted by certain experts have
not occurred. Were the case as dire as indicated, significant spills
would regularly occur. However, the evidence in this regard is so small
it borders on nonexistent.

In fact, it seems reasonable to believe that because these facilities
are utilized every day by people who bear immediate and direct
liability, both from an operational as well as a legal perspective,
their facilities may be better engineered, more practical and less prone
to failure that the one-size-fits-all methodology that contract experts
default to.

Furthermore, the rice industry strongly contends that members of the
agricultural sector -- who grow this nation's food, raise their children
on the land, and rely on well water from their property \-- are highly
motivated to ensure that their environmental practices are sound. These
producers strive daily to ensure a safe environment for their children
and the communities in which they live.

It is also interesting to note that other departments of the agency
have, in the past, sought to provide continuous work to Professional
Engineers by requiring them to draft compliance plans, such as for
stormwater control, only to retreat from that position. In fact, many of
those compliance plans were allowed to be drafted and made available
through industry associations as a means of reducing individual costs
and increasing constituent knowledge of the regulation thereby
increasing environmental protection. In this case the Agency seems to be
rejecting the idea of reducing burden and cost to the regulated
community in favor of requiring excessive costs.

**[Issue 4.]{.underline} Tank security requirements belong with DHS.**

The Agency should remove the tank security requirements from the SPCC
rule. The security requirements are not environmentally protective and
in some cases, as EPA admits in the document, may be contraindicated.
For example, lighting up every tank on a farm, located in fields
possibly many miles from the owner, will invite intruders especially
with today's high fuel prices. Each time a tank is opened and product is
removed for theft the chance of environmental harm increases.

Farms are currently being deluged with security regulations, both from
local, state and federal agencies. The Department of Homeland Security
(DHS) has just published one rule affecting the security of farms and is
working on more. EPA has no business in this regulatory arena and should
leave security up to the department that was created for that express
purpose. EPA's attempts will help to create costly, burdensome and
duplicative requirements for a low risk industry.

Farm tanks that suffer mischief will naturally be secured in various
means by the owner in an attempt to thwart future problems. Security for
other tanks that are in unknown locations and are not targets should be
left to the owner. This requirement will be an unnecessary burden to
farms.

**[Issue 5.]{.underline} Tank Integrity testing criteria needs to be
visual inspection only.**

As stated previously, most irrigation tanks are seasonal-use only and
there may be several tanks on a farm. Requiring expensive hull testing
for each is costly and burdensome, out weighing the risk. EPA has not
shown a history of spills associated with these tanks to validate the
imposed costs. Furthermore the tanks are subject to daily visual
inspections when they are holding fuel during the irrigation season and
they are not necessarily subject to the continuous pressures of larger
storage tanks that sometimes lead to catastrophic failures.

**[Issue 6.]{.underline} EPA's Regulatory Impact Analysis**[^1] **has
serious flaws.**

In the RIA the Agency is quick to point out all the cost savings to
farms that they've calculated, adding to the argument that this rule
will be less costly than it actually will be. Several things stand out:

-   EPA estimates an approximate figure of 152,000 affected farms[^2]
    based on USDA numbers. Nowhere does EPA mention the USDA numbers
    presented in the 2005 round of proposals that numbered potentially
    affected farms closer to 400,000.

    -   EPA generated their estimates based in part of assumptions
        plugged into complex calculations. One assumption, that 1997 and
        2002 "total fuel expenditures by farms was identical" ignores
        the fact that farms used less fuel as prices increased after the
        September 11, 2001 attack.[^3]

    -   Another incorrect assumption is "that all gasoline and diesel
        storage is aboveground."[^4]

    -   EPA states, "The best federal source of on-farm fuel storage
        data is the 1982 U.S. Census of Agriculture\...".[^5] That
        source, as represented in a chart, records approximately
        1,124,000 million farms in 1982.[^6] EPA then uses a negative
        growth rate developed from 1996 to 2005 farm data to predict a
        medium estimate of only 151,000 SPCC-regulated farms.[^7]
        However, the Agency then states that 2002 data shows over 2
        million farms storing fuel, based on the 2002 fuel oils
        expenditures multiplied by the ratio of diesel expenditure to
        total fuel oil expenditure in 1997.[^8] EPA's numbers do not add
        up and appear to underestimate the farming community that will
        be regulated by this rule.

-   EPA's cost savings of approximately \$3.6 million due to exempting
    pesticide application equipment is based on a report from one state.
    As stated many times over, agriculture is an incredibly diverse
    industry. The limited data set calls into question any numbers that
    the Agency attempted to derive from it.[^9]

-   EPA estimates a residential heating oil tank exemption savings of
    \$1,550 to \$2,210 per farm. EPA also states that they estimate
    those same tanks to register between 413 gallons and 1045 gallons.
    This is a false savings because:

    -   The original 1973 rule exempted 660 gallon tanks for the express
        purpose of exempting residential heating oil tanks;

    -   The current threshold of 1,320 gallons is above the upper gallon
        size of heating oil tanks as estimated by EPA at 1045 gallons;
        and,

    -   Savings on annual SPPC expenditures for residential tanks
        realized by homeowners is nonexistent because, in real life,
        practically no one has applied SPCC rules to their home heating
        oil tanks.[^10]

-   EPA further damages their credibility by examining Clean Water Act
    violation data from 2001 to 2006. In over 10,000 violations in that
    time period, only 292 involved oil spills of any type, and only
    **one** of those involved a farm. EPA is moving to place a costly
    and burdensome rule on the agricultural industry with no data to
    show a risk justifying the cost.[^11]

-   In the RIA, the Agency states they are considering the option of
    exempting farms below an as yet undetermined threshold. This would
    generate cost savings of around \$804 million if the capacity
    threshold is set at 10,000 gallons.[^12] Based on EPA's numbers
    shoring up the need for this rule and the lack of risk, the Agency
    should provide for an exemption at a minimum of 10,000 gallons.

**[CONCLUSION:]{.underline}**

USA Rice thanks the agency for the many instances where they listened to
and took into consideration our previous comments. These instances
include the exemptions for home heating oil tanks and pesticide
application equipment, alleviation for spills occurring from disasters
and reducing the recordkeeping requirement from ten years to three
years, to name a few.

However many issues of concern still remain to the rice industry.
Foremost among them are the inequities built into the criteria for
qualified facilities, where agriculture is treated more severely than
oil production facilities. Mixed in with this is the criteria for
self-certification that doesn't allow for any leeway from certain
performance standards, and the continuing requirement to use
professional engineers.

We also believe that the facility definition needs more clarification at
the inspector level and that a lengthy period of time needs to be
granted in regulation for working out any difference of opinions between
inspectors and growers. We further ask that tank integrity testing be
reduced to visual inspection and that security issues be deleted from
this rule and left to DHS to handle.

If you have any questions please don't hesitate to contact me at (703)
236-1445.

Sincerely,

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Steve Hensley

Director Regulatory Affairs

USA Rice Federation

[^1]: Regulatory Impact Analysis (RIA) for the Proposed Amendments to
    the Oil Pollution Prevention Regulations (40 CFR PART 112), Vol. 1.
    USEPA and Abt Associates, Inc. September 2007.

[^2]: RIA. Vol 1. Pg. 115.

[^3]: Regulatory Impact Analysis (RIA) for the Proposed Amendments to
    the Oil Pollution Prevention Regulations (40 CFR PART 112), Vol. 2.
    USEPA and Abt Associates, Inc. September 2007. Pg. 37.

[^4]: RIA. Vol 2. Pg. 38.

[^5]: RIA. Vol 2. Pg. 38.

[^6]: RIA. Vol 2. Pp. 39-40.

[^7]: RIA. Vol 2. Pg. 41.

[^8]: RIA. Vol. 2. Pg. 42.

[^9]: RIA. Vol 1. Pg. 116.

[^10]: RIA. Vol 1. Pg. 133.

[^11]: RIA. Vol. 2. Pp. 155-156.

[^12]: RIA. Vol. 1. Pp. 125-127.