### 1 COMMENT AND RESPONSE DOCUMENT

Oil Pollution Prevention; SPCC Plan Requirements

–

Compliance Date Amendments

40 CFR Part 112

November 4, 2011

U.S. Environmental Protection Agency

Office of Emergency Management

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INTRODUCTION

Purpose of This Document

The purpose of this document is to provide r esponses to comments on the 201 1 direct final rule and its concurrent proposed rule ( 40 CFR part 112 ) to revise the Oil Pollution Prevention and Response rule, also known as the Spill Prevention, Control, and Countermeasure (SPCC) rule (40 CFR part 112), promulgated under the Federal Water Pollution Control Act (FWPCA) or Clean Water Act (CWA)

. Organization of This Comment and Response Document

To develop this document, EPA reviewed the submissions made to publ ic docket number EPA

- HQ

- OPA

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- 08 3 8. EPA organized the submission comments based on the topics they addressed in the direct final rule (76 FR 64245) and its concurrent proposed rule (76 FR 64296) , which w ere published in the Federal Register on October 18, 2011

. Comments submitted to the public docket for this rulemaking appear in their entirety at http://www.regulations .gov, identified by Docket nu mber “EPA

- HQ

- OPA

- 20 11

- 08 3 8 .”

EPA organized the comments into two categories, the extension and the applicability of the extension, and responds to each in turn. Several comment excerpts or summary of
comments are provided, in addition to responses for each major issue. T he Docket Number of the submission is listed in parentheses in the Comments section for each category addressed. The Federal Docket Management System (FDMS) assign s Document Numbers to each subm ission based on the order they are received. Because of the expedited nature of this action, the Agency did not consider comments submitted electronically after the close of the comment period or received via regular mail postmarked after the close of the comment period.

Comment excerpts included in this document are taken verbatim from the submissions received by FDMS. Comments that make similar statements are grouped and one response is provided for the group.

The following table lists comment s FDMS rec eived by the close of the comment period for docket EPA

- HQ

- OPA

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- 08 3 8

. The table also lists the name and the organization that submitted each comment ; late comments are not included 1

.
FDMS ID First Name Last Name Organization

0013 Brette D. Smith Environmental Compliance Associates, LLC

0014

-------------- -------------- Anonymous (secondary containment provider)

0015

-------------- -------------- Anonymous (engineer with nation

- wide firm)

0016 Doug Gray One Resource Environmental

I. Extension of Compliance Date by 18 Months

1 Document Number s 0 0 01

- 0012 are assigned to the Federal Register Notice s for the direct final and proposed rule s, and supportin g documents , included in the docket prior to FDMS posting the first public
comment.

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Issue : EPA proposed to extend the SPCC rule compliance date by which farms must prepare or amend their SPCC Plans and implement those Plans by 18 months to May 10, 2013

.

COMMENTS

Support Proposal

Support

. There were no comments submitted during the comment period in support of the direct final rule and its concurrent proposed rule. (Note: The Agency did receive letters from the Secretary of Agriculture, Arkansas Agriculture Department, the Commissioner of t he Mississippi Department of Agriculture and Commerce and the Commissioner of the Louisiana Department of Agriculture before the Agency issued the direct final rule and parallel proposal that requested an extension of the compliance date by which farms mus t prepare or amend their SPCC Plans and implement them.)

Oppose Proposal

Do Not Extend the C ompliance D ate

. Comments (0013, 0014, 0015) received on the direct final rule with a concurrent proposed rule disagreed with providing any extension. The commenters expressly requested that the 18 month extension for farms not be granted and cited one or more of the following concerns about the extension : 1) that repeated extensions (eight times) of compliance dates removes the urgency for farms to “do the right thin g” from an environmental perspective (0013) or otherwise put off their SPCC obligations (0015) ; 2) interferes with the (commenters’) ability to communicate to potential clients (farmers) the need to come into compliance soon (0013) ; 3) there are many
compa nies ready to assist farmers with their SPCC Plans (0014, 0015) ; and 4) there are millions of dollars available in grants for farmers to take advantage of in order to come into compliance with the SPCC regulations (0014) . Two of the
commenters (0014, 0015) suggested that greater outreach to farms regarding the SPCC Plan requirements is needed instead of the extension.

Alternative Approaches

Extend C ompliance D ate by T hree or F

our M onths

. One commenter (0016) agreed that an extension is necessary but does not agree with the time frame of 18 months. The commenter stated that a vast majority of farming clients have indicated that they are out of harvest and feel confident that they can finalize their SPCC Plans d uring the winter months. Therefore, a three to four month extension coupled with a concerted effort to inform farmers of their regulatory responsibilities would be of far greater benefit to the farming community. The commenter cited three primary concerns of the proposed extension: 1) it jeopardizes the resources that are currently available to help producers gain compliance; 2) there are solutions and professionals available including a “free of charge” online SPCC Plan creation tool, even though most farm s do not need a professional engineer (PE) to certify their SPCC Plan and are able to prepare a self

- certified SPCC P lan; and 3) a concerted effort must be made to inform and educate farmers about the SPCC rule and their responsibilities. One commenter cit ed a potential loss of jobs associated with the action and the inequity of EPA’s enforcement of the

### 4 SPCC regulation on farmers as compared to other sectors , such as the oil and gas sector

.

RESPONSE

While we recognize that there have been multiple extensions to the compliance date under 40 CFR 112.3

– Requirement to prepare and implement a Spill Prevention, Control, and Countermeasure Plan, at this time

, we are further extending the date for compliance for a narrow segment of industries that are cov ered by this regulation ; i.e., farms.

The Agency considered comments that opposed any extension to the compliance date and the comment that recognized a compliance date extension was appropriate, but suggested a shorter compliance date, as well as the let ters from the Secretary of Agriculture, A rkansas Agriculture Department, the Commissioner of the M ississippi Department of Agriculture and Commerce and the Commissioner of the L ouisiana Department of Agriculture previously received by the Agency , that spec ifically requested an additional 24 months for farms to implement their SPCC Plans and recover financially from the impacts of extreme weather, find qualified engineers, and install the proper equipment. The Agency proposed an 18 month extension determinin g that 24 months may be too long a period and decided 18 months should be adequate time for the farms. We still believe 18 months is the correct timeframe upon hearing from commenters that there are firms available to assist the farmers to come into compli ance.

The Agency recognizes that farms

, more than other industries, are directly impacted by extreme weather conditions

, such as the devastating flooding and drought that was experienced this past year by a substantial portion of the continental U.S. Rathe r than requiring all impacted farms to submit a written request to the Regional Administrator of the EPA Regional Office for the state where the farm is located in accordance with paragraph (f) of 40 CFR 112.3, we determined that it is more efficient to ex tend the compliance date for the farm industry. We also want to emphasize that farms should not wait until May 10, 2013

, to ready their SPCC Plans. Farms should take advantage of

non

- growing and non

- harvesting seasons to focus on preparing and implementing their SPCC Plans.

### 5 II. Applicability of the Compliance Date Extension

Issue : Farms that are not in compliance with the SPCC regulations do not qualify for the extension.

COMMENTS

Clarification on A pplicability of E xtension: T hree of the four comments (0014, 0015, 0016) correctly explain that EPA’s action does not provide an extension for those farms that were in operation on or before August 16, 2002, and which did not have a previously developed SPCC Plan

. Such farms may be in noncompliance with the r ule. A commenter (0014) also questioned the necessity of the current action

, pointing out that “ most farms are in noncompliance ” and would not benefit from the extension. A second commenter (0016) also pointed out the misconception that all farmers (produ cers) will be eligible for the extension. The
commenter (0016) stated that many farmers do not have SPCC Plans, thus, making them ineligible for the extension.

RESPONSE

The Agency agrees with commenters that said that only existing farms maintaining an SPCC plan or new farms coming into operation after August 16, 2002

, are eligible for the extension provided by this action.