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S. HRG. 109–1017 

THE ENVIRONMENTAL PROTECTION AGENCY’S 

SPILL PREVENTION CONTROL AND 

COUNTERMEASURE PROGRAM 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

DECMBER 14, 2005 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

JOHN W. WARNER, Virginia 

CHRISTOPHER S. BOND, Missouri 

GEORGE V. VOINOVICH, Ohio 

LINCOLN CHAFEE, Rhode Island 

LISA MURKOWSKI, Alaska 

JOHN THUNE, South Dakota 

JIM DEMINT, South Carolina 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JAMES M. JEFFORDS, Vermont 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BARACK OBAMA, Illinois 

ANDREW WHEELER, Majority Staff Director 

KEN CONNOLLY, Minority Staff Director 

(II) 
(III) 

C O N T E N T S 

Page 

DECEMBER 14, 2005 

OPENING STATEMENTS 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 34 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1 

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 10 

Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska ........................... 6 

Thune, Hon. John, U.S. Senator from the State of South Dakota ...................... 15 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 16 

Voinovich, Hon. George V., U.S. Senator from the State of Ohio ........................ 14 

WITNESSES 

Corbett, James J., Ph.D., assistant professor, Marine Policy Program, Graduate College of Marine Studies, University of Delaware .................................. 31 

Prepared Statement ......................................................................................... 68 

Additional Statement ....................................................................................... 79 

Responses to Additional Questions from Senator Inhofe .............................. 85 

Coyne, James, president, National Air Transportation Association .................... 26 

Prepared Statement ......................................................................................... 54 

Responses to Additional Questions from Senator Inhofe .............................. 60 

Cummings, Brent, vice president, Cummings Oil ................................................. 23 

Prepared Statement ......................................................................................... 50 

Responses to Additional Questions from Senator Inhofe .............................. 52 

Responses to Additional Questions from Senator Jeffords ........................... 53 

Dunne, Thomas P., acting assistant administrator, Office of Solid Waste 

and Emergency Response, U.S. Environmental Protection Agency ................. 6 

Prepared Statement ......................................................................................... 86 

Responses to Additional Questions from Senator Baucus ............................ 103 

Responses to Additional Questions from Senator Inhofe .............................. 91 

Responses to Additional Questions from Senator Jeffords ........................... 94 

Response to an Additional Question from Senator Voinovich ...................... 102 

Ott, Riki, Ph.D., author and marine toxicologist .................................................. 29 

Prepared Statement ......................................................................................... 65 

Responses to Additional Questions from Senator Jeffords ........................... 67 

Owen, Richard G., director, CHS, Inc .................................................................... 28 

Prepared Statement ......................................................................................... 61 

Responses to Additional Questions from Senator Inhofe .............................. 63 

Responses to Additional Questions from Senator Jeffords ........................... 64 

Sullivan, Thomas, chief counsel for advocacy, Office of Advocacy, U.S. Small 

Business Administration ..................................................................................... 4 

Prepared Statement ......................................................................................... 44 

Responses to Additional Questions from Senator Inhofe .............................. 47 

Responses to Additional Questions from Senator Jeffords ........................... 49 

ADDITIONAL MATERIAL 

Article from Science Magazine: Long-Term Ecosystem Response to the Exxon 

Valdez Oil Spill .................................................................................................... 104 

Report on the EPA’s Spill Prevention, Control, and Countermeasure (SPCC) 

Rule; Status of Recommendations from 1989 .................................................... 108 

Statements: 

American Feed Industry Association (AFIA) ......................................................... 117 
Page

IV 

American Society of Civil Engineers (ASCE) ........................................................ 131 

E.H. Pechan & Associates, Inc ............................................................................... 142 

Earthjustice, the Natural Resurces Defense Council, and the Sierra Club ........ 149 

Food Industry Environment Council (FIEC), Dated December 13, 2005 ............ 157 

Food Industry Environment Council (FIEC), Dated March 26, 2003 ................. 160 

Gas Processors Association (GPA) .......................................................................... 169 

National Oilseed Processors Association (NOPA) ................................................. 172 

National Society of Professional Engineers (NSPE) ............................................. 165 

Petroleum Marketers Association of America (PMAA) ......................................... 170 

Regulatory Analysis for the Proposed Revisions to the Oil Pollution 

Provention Regulation (40 CFR Part 112) ......................................................... 195 

Small Business Administration Office of Advocacy .............................................. 178 

Spill Prevention, Control, and Countermeasures Rule Issues of 2002 (SPCC) .. 250 

USDA, Fuel/Oil Storage and Delivery for Farmers and Cooperaives ................. 260 
(1) 

THE ENVIRONMENTAL PROTECTION AGENCY’S SPILL PREVENTION CONTROL 

AND COUNTERMEASURE PROGRAM 

WEDNESDAY, DECEMBER 14, 2005 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 9 o’clock a.m. in room 

406, Senate Dirksen Building, Hon. James M. Inhofe (chairman of 

the committee) presiding. 

Present: Senators Inhofe, Isakson, Murkowski, Jeffords, 

Voinovich, Vitter, Thune, Carper. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. 

SENATOR FROM THE STATE OF OKLAHOMA 

Senator Inhofe. Our meeting will come to order. We have a policy, at least in the 3 years that I have chaired this committee, that 

we start on time even if no one else shows, even including witnesses. You are all here, so I appreciate that. 

We are here to discuss the EPA’s Spill Prevention, Control, and 

Countermeasures Rule. As many of you know I have been following 

this rule for several years and have written to the Agency numerous times, mainly to express concern with the direction the program is taking. It is very important that we look at this program 

objectively. No one in this room wants more oil spills. In fact, those 

who are with us today to express their concerns about this rule lose 

money when there are oil spills. They either sell it as a commodity 

or have bought it to run their businesses. All they ask for are reasonable regulations that address real problems and can be implemented with minimal but justifiable costs. They don’t think that is 

too much to ask of the Federal Government. 

This program is the worst of the one size fits all Government. 

There are certainly measures that should be taken at large facilities that are equal to the risks associated with a potential spill 

from those facilities. Why would we apply the same standard to a 

small facility with a very small risk of spilling? Why would we 

apply the same standard to completely different industries? 

Part of the problem with the rule is that the EPA is trying to 

cover virtually every industry someone can think of with one rule, 

and it is making for very bad Government and bad policy. What 

is most egregious about the rule is the utter lack of data to back 

it up. There is simply no data to defend the inclusion of farms and 

the air transport industry under the rule. Further, there is limited 
2 

data to justify many of the proposed changes that affect other industries. 

Again, no one here today is seeking to have more spills. We simply want the Federal regulations to address real, identifiable, proven problems. The 2002 rule does not do that. The 1973 rule didn’t 

do it. That is why the EPA has proposed the rule it did today 

which is an incomplete but appropriate step in the right direction. 

The rule correctly extends the compliance deadline for farming 

operations with a storage capacity of less than 10,000 gallons. 

However, that extension is limited to the 2002 requirements, leaving in place the onerous 1973 rule for farmers. The approach to 

farmers has been the exact opposite of how our Government should 

work. We should first identify a problem, then write a law or a regulation. Instead, the EPA wrote a regulation to cover farms and is 

now trying to identify the problem. 

The proposed rule does correctly provide much needed relief to 

the air transport industry. The sized secondary containment requirements do not make sense at airports. They could create safety 

and fire hazards and would unnecessarily cause logjams on runways. 

Unfortunately, the rule does little to assist the small oil producers. First, by reinterpreting its wastewater treatment exemption, EPA will bring under the rule for the first time natural gas 

wells by arguing that produced water is, in fact, an oil. Second, the 

10,000 gallon threshold outlined today does nothing to help small 

producers who often have storage capacities far above that which 

they have at the present time. If a producer was producing a lot 

more oil in the past, then, of course, they would have containers 

to take care of that. However, that may not be appropriate today. 

In essence, you would be saying you would have to get rid of a perfectly good storage tank and replace it with a much smaller one 

just because you are not using the full capacity of the big one. 

Yet, some might be narrow in incorrectly arguing today that we 

are trying to make it easier to have oil spills, but family farmers 

do not want oil spills because they live on the land, and they are 

paying for a lot of fuel. Brent Cummings from Oklahoma runs a 

family owned business with eight employees. He certainly doesn’t 

want more oil spills. People like Mr. Cummings lose money when 

they lose oil. 

We simply must have reasonable regulations at reasonable costs 

that can be thoroughly defended with sound data. To date, that has 

not been the case with the SPCC programs. 

I do apologize to you folks today. I just got back from my tenth 

trip to Iraq last night, and I am kind of zonked out still. When you 

ride around in a C–130 at nighttime up there, you come back with 

a cold no matter what precautions you take. I would say, though, 

that along that line, I thought we might wait just a few minutes 

for some of our members to attend. 

It is incredible the successes that are taking place in Iraq today. 

It is just not believable. Each time I go, and it is about once every 

month or so, I come back just shocked at how good things are. The 

Iraqis now are up to 214,000 security forces. They know what they 

are doing. Out of that 200, that is 112 divisions. Out of the 112 divisions, 30 of them can stand alone. They don’t need any help. 
3 

Right now, half of the city of Baghdad is completely under the control of the Iraqis taking care of themselves. We are not even supporting them. 

We expected to have a spike in the insurgence activities before 

the vote. The election is taking place tomorrow. That didn’t happen. We had an election of the Iraqi security forces on Monday. So 

I was in Fallujah yesterday observing that, and it could not have 

gone better; not one incident occurred. Much to the chagrin of 

many politicians who want to use this as their road to the White 

House, it ain’t gonna work. 

Let us go ahead. We will start with our witnesses. Mr. Sullivan 

and Mr. Dunne, I appreciate very much your being here. Mr. Sullivan is the Chief Counsel for Advocacy, the Office of Advocacy in 

the U.S. Small Business Administration, and Thomas Dunne is the 

Acting Assistant Administrator, the Office of Solid Waste and 

Emergency Response for the EPA. We appreciate both of you being 

here. 

Why don’t you start, Mr. Sullivan? This panel, as well as the 

next panel, we will keep all of your entire statement and it will be 

made part of the record. You may abbreviate it or try to keep it 

under about 5 minutes. 

[The prepared statement of Senator Inhofe follows.] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF

OKLAHOMA

Today we are here to discuss the EPA’s Spill Prevention Control and Countermeasure rule. As many of you know, I have been following this rule for several 

years and have written to the Agency numerous times, mainly to express concern 

with the direction the program was taking. It is very important that we look at this 

program objectively. No one in this room wants more oil spills. In fact, those who 

are with us today to express concerns about this rule lose money if they spill oil. 

They either sell it as a commodity or have bought it to run their businesses. All 

they ask for are reasonable regulations that address real problems and can be implemented with minimal but justifiable costs. I honestly don’t think that is too much 

to ask of the Federal Government. 

This program is the worst of one-size-fits all Government. There are certain measures that should be taken at large facilities that are equal to the risk associated 

with a potential spill from those facilities. Why would we apply the same standard 

to a small facility with a very small risk of spilling? Why would we apply the same 

standard to completely different industries? Part of the problem with this rule is 

that EPA is trying to cover virtually every industry someone can think of with one 

rule and its making for very bad Government and very bad policy. 

What is most egregious about this rule is the utter lack of data to back it up. 

There is simply no data to defend the inclusion of farms or the air transport industry under the rule. Further, there is limited data to justify many of the proposed 

changes that affect other industries. Again, no one here today is seeking to have 

more spills. We simply want Federal regulations to address real, identifiable, proven 

problems. The 2002 rule does not do that. The 1973 rule does not do that. 

That is why the EPA has proposed the rule it did today which is an incomplete 

but appropriate step in the right direction. The rule correctly extends the compliance deadline for farming operations with a storage capacity of less than 10,000 gallons. However that extension is limited to the 2002 requirements leaving in place 

the onerous 1973 rule for farmers. The approach to farmers has been the exact opposite of how our Government should work. We should first identify a problem and 

then write a law or a regulation. Instead EPA wrote a regulation to cover farmers 

and is now trying to identify the problem. 

The proposed rule does correctly provide much needed relief to the air transport 

industry. The sized secondary containment requirements do not make sense at airports. They could create safety and fire hazards and would unnecessarily cause logjams on the runways. 
4 

Unfortunately, the rule does little to assist small oil producers. First, by reinterpreting its wastewater treatment exemption, EPA will bring under the rule for the 

first time natural gas wells by arguing that produced water is in fact an oil. Secondly, the 10,000 gallon threshold outlined today does nothing to help small producers who often have storage capacity far above that because these wells at one 

time produced far more oil. I look forward to working with EPA to address the concerns of the small producers that make up the backbone of the Nation’s energy industry. 

Again, some might be narrow in incorrectly arguing today that we are trying to 

make it easier to have oil spills. Family farmers do not want oil spills because they 

live on the land and are paying a lot for fuel. Brent Cummings from Oklahoma runs 

a family owned business with eight employees. He certainly doesn’t want more oil 

spills. People like Mr. Cummings lose money when they lose oil. We simply must 

have reasonable regulations at reasonable costs that can be thoroughly defended 

with sound data. To date, that has not been the case with the SPCC program. 

STATEMENT OF THOMAS SULLIVAN, CHIEF COUNSEL FOR ADVOCACY, OFFICE OF ADVOCACY, U.S. SMALL BUSINESS ADMINISTRATION 

Mr. Sullivan. Thank you, Chairman Inhofe. I will try to abbreviate my lengthy written statement. 

Good morning. Thank you for giving me the opportunity to appear before the committee. My name is Tom Sullivan. I am the 

Chief Counsel for Advocacy at the Small Business Administration. 

Because my office is an independent entity within the U.S. Small 

Business Administration, and I am charged with solely representing the views of small business, my testimony does not necessarily reflect the position of the Administration or the SBA. 

SPCC regulations were initially promulgated by EPA in 1973 as 

the chairman described in his opening statement. Because of the 

complexity and cost of the Spill Prevention and Countermeasure 

plans, many small businesses found it difficult to comply with the 

1973 requirements. The regulated community was particularly surprised by the 2002 revisions, given that the stated purpose of those 

amendments was to reduce, not increase, regulatory burdens. 

In response to small businesses’ reaction to EPA’s 2002 revisions, 

my office worked with EPA to identify small business concerns related to the rule. Those concerns were formally suggested in June 

2004, in a letter from my office to Tom Dunne. Our letter was supplemented by a contractor’s report we commissioned on the subject. 

EPA’s notice of data availability issued last September and the rule 

recently proposed by EPA relied heavily on the report and the recommendations contained in our June 2004 letter. 

My office continues to believe that the overall SPCC compliance 

would improve with a simpler, less expensive program that is tailored to small facilities. In the June, 2004 letter I sent to EPA, 

there were four general areas we recommended for reform. Comments by the small business community were obviously taken seriously by EPA because many were included in the proposed rule. 

The four areas my office focused on were: small facilities, integrity 

testing, motive power and oil-filled equipment, and asphalt and 

hot-mix cement. 

From the small facility recommendations, professional engineer 

review and certification in EPA’s proposal allows for model plans 

to be written by trade associations that can be readily adapted for 

small facilities as was successfully done for the Accidental Release 

Program under Section 112(r) of the Clean Air Act. Our June 2004 
5 

letter included farms in the universe of reforms covering small facilities, and my office is supportive of the EPA’s proposal to extend 

the compliance date for farms, pending greater analysis of any oil 

spill risks that may be associated with the agricultural community. 

For integrity testing, my office recommended that EPA allow visual inspection without the need for obtaining a costly PE certification for small tanks and containers under specified conditions. 

We are pleased with EPA’s proposal for additional flexibility in integrity testing by allowing facilities to consult and rely upon industry inspection standards for small facilities without employing a 

PE. 

We expect that small businesses will want to expand EPA’s proposal because an expansion, even to the 10,000 gallon threshold, 

will not present additional hazards because all small facilities 

would be required to have release barriers and secondary containment. 

For motive power and oil-filled equipment, EPA realized that it 

did not make sense for the SPCC rules to cover retail dealerships 

selling tractors or to include construction sites under the rule. The 

Agency found that it just wasn’t practical to require containment 

around vehicles that regularly move about the site. This step in 

EPA’s proposal will provide relief at thousands of facilities. 

My office is also supportive of EPA’s proposed reduced requirements for oil-filled equipment. The proposal moves away from the 

more expensive secondary containment requirement and allows facilities to substitute an oil contingency plan and a written commitment of manpower to remove any oil that may be discharged. That 

provision reflects the fact that such equipment has a low spill rate. 

As a result of substantial concerns raised by the construction industry, my office advocated for the exclusion of asphalt cement and 

hot-mix asphalt from all SPCC-related requirements in our letter 

of June, 2004. My office based this on the observation that asphalt 

cement and hot-mix asphalt are solid to semi-solid at normal, outdoor temperature would not flow very far, and therefore would not 

pose a risk to navigable waters. 

We are hopeful that more flexible options remain under consideration in EPA’s efforts to further reform SPCC. On behalf of small 

business, my office commends EPA for listening to small business 

concerns while drafting their amendments. 

Congress realized the importance of small businesses when the 

Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act were enacted into law. Under those two laws 

that my office oversees, we look for ways to reduce small business 

burdens without compromising the regulatory objectives intended 

by the regulating Agency. We believe that EPA’s regulatory reform 

efforts for SPCC can achieve those same objectives. 

Thank you for allowing me to present these views, and I would 

be happy to answer any questions. 

Senator Inhofe. Thank you, Mr. Sullivan. 

Mr. Dunne, before you start, let me ask Senator Isakson and 

Senator Murkowski, if either one has an opening statement they 

would like to give at this time? 

Senator Isakson. Not now, Mr. Chairman. Thank you. 
6 

OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. 

SENATOR FROM THE STATE OF ALASKA 

Senator Murkowski. Mr. Chairman, I just want to thank you for 

holding this hearing on the proposed EPA rule changes on the oil 

spill contingency planning. When you keep in mind that you have 

had regulations in place for about 34 years, it is probably timely 

that we look to updating these spill prevention rules. Certainly 

from Alaska’s perspective, we have a great deal of interest in this. 

I am pleased to have with us today, at least on the second panel 

here, from Alaska, Riki Ott from Cordova, a wonderful fishing community. She has been very actively involved in oil spill cleanup 

over the years in connection with the Exxon Valdez oil spill in 

Prince William Sound about 16 years ago. So we certainly have 

firsthand experience on this topic. 

I welcome the efforts by the EPA to make oil spill prevention 

plans more workable and more effective, and I appreciate the Agency’s efforts to really better standardize the inspection and the enforcement efforts with that. 

Mr. Chairman, I appreciate again your holding this hearing and 

allowing me a chance to make a statement. 

Senator Inhofe. It is hard to believe it has been 16 years since 

Exxon Valdez. 

Senator Murkowski. Yes, a long time. 

Senator Inhofe. Mr. Dunne, you are recognized. 

STATEMENT OF THOMAS P. DUNNE, ACTING ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY 

RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. Dunne. Thank you, Mr. Chairman and members of the committee for inviting me today to discuss EPA’s Oil Spill Prevention, 

Control, and Countermeasure Program. 

My testimony will address issues regarding EPA’s recent efforts 

to streamline SPCC requirements, to extend the compliance dates 

for modification and implementation of SPCC plans, and to provide 

guidance to EPA inspectors on the SPCC requirements. I will just 

summarize my statement and provide the written statement to 

you. 

First, a little history, the Federal Water Pollution Control Act of 

1970 required the President to issue regulations that would establish procedures, methods, equipment, and other requirements to 

prevent discharges of oil from vessels and facilities and to contain 

such discharges. In 1973, EPA originally promulgated the SPCC 

regulations under the Clean Water Act. The regulations established 

spill prevention procedures, methods, and equipment requirements 

for non-transportation-related, onshore and offshore facilities with 

aboveground storage capacity of greater than 1,320 gallons. Regulated facilities were also limited to those that could reasonably be 

expected to discharge oil in harmful quantities into the navigable 

waters of the United States or adjoining shorelines. 

The fundamental requirement established by this rule that has 

not changed in nearly 30 years is that facilities covered by these 

regulations are required to prepare an SPCC plan, and that plan 

must be certified by a licensed professional engineer. 
7 

Moving forward several decades, EPA in 2002 published final 

amendments to the original SPCC regulations. After publication of 

this rule in 2002, several members of the regulated community 

filed legal challenges to certain aspects of the rule. All of these 

issues raised in the litigation have been settled except for the definition of navigable waters. Since then, EPA has extended the dates 

for revising and implementing SPCC plans several times. 

EPA recently issued a proposal rule to extend the dates by which 

facilities will need to amend and implement an SPCC plan to October 31, 2007. EPA has taken this action to allow time for the Agency to finalize amendments to the SPCC requirements that were recently proposed. We also want sufficient time for facilities to understand these modifications, to review and understand the guidance 

we recently issued, and to make appropriate changes to the facilities and to their SPCC plans as a result of the rule modifications 

and the guidance. 

EPA also proposed a rule containing substantive revisions of 

SPCC requirements. This proposed rule represents our efforts to 

strike the right balance between protection of the environment and 

our Nation’s valuable water resources and common sense regulatory flexibility. I am certain that we share the same goal, to safeguard the environment by preventing spills before they damage the 

environment. I truly believe that in this instance, an ounce of prevention is worth a pound of cure. It is much more costly to clean 

a spill than to prevent one, and once a spill occurs, cleanup is difficult and there is often little we can do to prevent damage to water 

resources and wildlife. 

I will give a brief summary of some of the different changes in 

EPA’s proposed rule. 

EPA has proposed to provide small facilities, those handling less 

than 10,000 gallons of oil, the option to self-certify their plans. In 

addition, we are proposing additional flexibility for these smaller 

facilities with respect to tank integrity inspections and facility security. 

EPA is also proposing greater flexibility for airport mobile refuelers which will no longer be subject to sized secondary containment requirements. All of our airports will still need to meet general secondary containment requirements. EPA believes that the 

general secondary containment requirements are much more flexible and reflect the kinds of active and passive fuel spill protection 

measures already used by many airports in their fueling operations. 

In addition, EPA is proposing to extend the 2002 compliance 

dates for all facilities, including farms, until October 31st, 2007, 

and to extend the 2002 rule compliance dates indefinitely by farms 

storing 10,000 gallons of oil or less. EPA is committed to work with 

USDA and farm representatives to determine how to properly address farms under the SPCC regulation. 

Further, EPA is proposing a streamlined regulatory option for oil 

filled equipment. A facility owner or operator can choose to satisfy 

the SPCC requirements through inspection and monitoring systems 

and contingency planning, rather than through general containment requirements. In doing so, the proposal provides electric utili-
8 

ties and other industrial facilities with an additional prevention option for this unique equipment. 

In addition, EPA recognizes that in most cases, the SPCC requirements are not practical for motive power containers on onboard vehicles at SPCC regulated facilities. The types of vehicles 

and facilities that are potentially subject to the SPCC requirements, solely because of the oil or fuel contained onboard the vessels, are buses at terminals or depots, recreational vehicles parked 

at dealerships, earth removing equipment at construction sites, aircraft, and large farming and mining equipment. Consequently, 

EPA is proposing to exempt them from all coverage under SPCC. 

Finally, the EPA has issued the SPCC guidance for regional inspectors, and this guidance is intended to assist regional inspectors 

in reviewing a facility’s implementation of the current SPCC rule. 

The document provides a better understanding of how the rule applies to various kinds of facilities and to help clarify the role of the 

inspector in the review and evaluation of the performance-based requirements. Another reason for the guidance is to respond to stakeholders’ requests for consistent National policy on several SPCC-related issues. 

As to the oil exploration—— 

Senator Inhofe. Try to wrap up, if you would, Mr. Dunne. 

Mr. Dunne [continuing]. I will. I want to make the point on oil 

exploration and production facilities. 

We are trying to identify additional areas where regulatory reform may be appropriate. For the smaller areas and facilities, we 

still will give the same breaks as to small business. Without going 

into anything more on oil production, we are willing to work with 

that sector, Mr. Chairman, on what other requirements exist to increase compliance and therefore reduce the amount of oil spilled. 

Thank you very much. We hope that we have struck the right 

balance. We expect to hear from the regulated community in the 

public comment period. You have my commitment and the Administrator’s commitment that we will take the comments that we see 

during the public comment period very seriously, and these comments will guide us to move forward on SPCC problems. 

Thank you, Mr. Chairman. 

Senator Inhofe. That is good. Well, thank you, Mr. Dunne. We 

would expect that, and we will appreciate that very much. 

A witness for the next panel claims in her testimony that the 

rulemaking weakens the facilities’ liability under the Clean Water 

Act. It is my understanding that that is already covered under the 

Clean Water Act and the Oil Pollution Act. I will just ask you, Mr. 

Dunne, in any way do you know that this rule will weaken the liability? 

Mr. Dunne. I don’t believe so, unless somebody thinks because if 

you are self-certifying in smaller facilities, it could weaken your liability. I don’t. It is not contemplated under this rule that would 

be true, and if that is a concern, we certainly would address that 

when the comments come in. 

Senator Inhofe. As you understand it right now, it would not? 

Mr. Dunne. It would not. 

Senator Inhofe. All right. 
9 

In the rule, it states that it has heard of spills from mobile refuelers at airports. I am a little frustrated by this. I must admit 

I have some bias on this. I have been an active pilot for 50 years, 

and I am pretty familiar with how these units work. We have made 

requests for information to show actually that there is an exposure 

there from the mobile refuelers at airports, and when we got the 

response back, they talked about the airport facilities. Now this 

could include a McDonald’s or anything else. Specifically on just 

the refueling trucks, we don’t have anything, any of the statistics, 

and apparently you do because you are writing rules and making 

input. 

I would like to ask you if you have anything currently that just 

identifies the spills from the refueling trucks as opposed to an airport facility, and if not, when we could get that information. 

Mr. Dunne. Mr. Chairman, I will go back to the data we see from 

the National Response Center where we have spills, both hazardous and oil reported, and see what kind of data that we have 

there. I know that there is some anecdotal data from inspectors 

that go out and have visited airports. Will provide whatever we can 

to you as soon as possible. 

Senator Inhofe. What I would like to do is take advantage of the 

fact that this is in the hearing and ask that you supply us with 

that data in the next 2 weeks if you have it. 

Mr. Dunne. Thank you, Mr. Chairman. We will. 

Senator Inhofe. All right. 

Mr. Sullivan, the OIPA, Oklahoma Independent Petroleum Association is, in their letter to the EPA regarding the argument about 

the 10,000 threshold. You heard me in my opening statement talk 

about the fact that we are very sensitive to this. Our margin of producers in Oklahoma, at one time, having started in that business 

myself so I am little bit familiar with it, where that they had a lot 

of storage on their site, and they have 10,000 gallon containers, 

and yet they may be only using 1,000 or even less of that. 

Now you heard me in my opening statement the problem that I 

think is a problem anyway, that if you are producing, you are storing only a very small amount just because you are storing it in a 

container with a larger capacity. That doesn’t make any sense to 

me. Do you have any comments about that? 

Mr. Sullivan. Well, I think in the integrity testing reforms that 

the EPA has proposed there is some room for expansion. I think 

the visual inspection requirements deserve another look at whether 

or not the scenario you lay out does pose any additional risks. The 

small businesses that seek my office’s help with this regulation and 

others—— 

Senator Inhofe. Are you suggesting maybe it isn’t a problem? 

Mr. Sullivan [continuing]. Well, right now, there is the distinction between 5,000 and 10,000 gallons, and small businesses would, 

I think, like the visual inspection component of integrity testing to 

be expanded all the way to the 10,000 gallon threshold. I think 

that that is an area that may cover some of the scenario that you 

laid out. 

Senator Inhofe. OK, Mr. Cummings is in the audience and will 

be on the second panel. I would like to have you give some thought 
10 

to that because we may be wanting to pursue that a little bit. 

Thank you very much. 

We have been joined by our Ranking Member, Senator Jeffords. 

Senator Jeffords, would you have any opening statement you 

would like to make? 

Senator Jeffords. Yes, I do. 

Senator Inhofe. You are recognized. 

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. 

SENATOR FROM THE STATE OF VERMONT 

Senator Jeffords. Thank you, Mr. Chairman. I welcome this opportunity today to conduct oversight on the EPA’s Spill Prevention, 

Control, and Countermeasures Program. 

This program was adopted in 1972 with the passage of the Clean 

Water Act in the wake of the Torrey Canyon oil spill in England. 

Nearly 100,000 gallons of crude oil spilled there, killing over 20,000 

seabirds and contaminating 70 miles of beaches. 

People often say that an ounce of prevention is worth equals a 

pound of cure. This program is the epitome of that saying. According to the EPA, the United States has 250 billion gallons of oil and 

petroleum products each year. At every point in the production, 

distribution, and consumption process, oil spills may occur. Oil 

spills wreak havoc on the environment in local communities. In the 

short term, they contaminate drinking water and cause large 

deaths of marine life. They foul beaches and destroy local economies. In the longer term, oil spills affect the health and the viability of marine animals, reptiles, birds, animals, and plants. Local 

fishing economies may struggle to recover after an oil spill. Recent 

studies of the Exxon Valdez spill have demonstrated that oil has 

persistent and long term harmful effects in aquatic ecosystems. 

I ask unanimous consent to include the record of the study of 

this topic which appeared in Science Magazine, 2003. 

Senator Inhofe. Without objection. 

[The referenced material can be found on page 104.] 

Senator Jeffords. Even extremely small spills can cause serious 

harm. We must do everything we can to prevent them. 

With that introduction, I am concerned about the overall state of 

the SPCC program. This program appears to have been largely neglected since its adoption in 1972. Since that time, the GAO and 

others have leveled some serious criticisms of the program that 

went unaddressed from EPA in many years. I will be submitting 

those materials, as well as an update the GAO prepared for the 

record of today’s hearing. 

[The referenced material can be found in the committee file.] 

In May I asked the GAO to review the current program and determine if any progress has been made. I look forward to the results of that review as I consider today’s proposed rulemaking. 

In 2002, the EPA overhauled the SPCC program, but since the 

Bush administration took office, the Agency has postponed the effective date of these changes three times for a total of 4 years, 

making the current effective date 2007. Industry has since used the 

2002 regulations as an opportunity to further lobby the Administration to roll back Clean Water Act protections by changing the 

definition of navigable waters. 
11 

Today, the SPCC program stands basically as it was in 1972. We 

have surely learned something about oil spill prevention over the 

last 35 years. 

It is imperative that we have a strong program in place with 

good enforcement. It is with this in mind that I will be listening 

to today’s witnesses and ask: Does the EPA proposed rule and 

guidance document take us forward or backward in our efforts to 

protect our Nation’s waterways from oil contamination? 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Jeffords follows:] 

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE STATE OF

VERMONT

Mr. Chairman, I welcome this opportunity today to conduct oversight on the 

EPA’s Spill Prevention Control and Countermeasures program. 

This program was adopted in 1972 with the passage of the Clean Water Act, in 

the wake of the Torrey Canyon oil spill in England. 

Nearly 100,000 gallons of crude oil spilled there, killing over 20,000 sea birds, and 

contaminating seventy miles of beaches. 

People often say that an ounce of prevention equals a pound of cure. This program 

is the epitome of that saying. 

According to the EPA, the United States uses 250 billion gallons of oil and petroleum products each year. 

At every point in the production, distribution, and consumption process, oil spills 

may occur. 

Oil spills wreak havoc on the environment and local economies. In the short term, 

they contaminate drinking water and cause large-scale deaths of marine life. They 

foul beaches and destroy local economies. 

In the longer term, oil spills affect the health and viability of marine mammals, 

reptiles, birds, animals, and plants. 

Local fishing economies may struggle to recover after an oil spill. Recent studies 

of the Exxon Valdez oil spill have demonstrated that oil has persistent and longterm harmful effects in aquatic ecosystems. 

I ask unanimous consent to include in the record a study on this topic, which appeared in Science magazine in 2003. 

Even extremely small spills can cause serious harm. We must do everything we 

can to prevent them. 

With that introduction, I am concerned about the overall state of the SPCC program. This program appears to have been largely neglected since its adoption in 

1972. 

Since that time, the GAO and others leveled some serious criticisms at the program that went unaddressed by EPA for years. 

I’ll be submitting those materials, as well as an update that the GAO prepared 

for the record of today’s hearing. 

Today I asked the GAO to review the current program and determine if any 

progress has been made. I look forward to the results of that review as I consider 

today’s proposed rulemaking. 

In 2002, the EPA overhauled the SPCC program, but since the Bush Administration took office, the Agency has postponed the effective date of those changes three 

times, for a total of four years, making the current effective date 2007. 

Industry has since used the 2002 regulations as an opportunity to further lobby 

the Administration to roll back Clean Water Act protections by changing the definition of navigable waters. 

Today, the SPCC program stands basically as it was in 1972. We have surely 

learned something about oil spill prevention over the last 35 years. It is imperative 

that we have a strong program in place with good enforcement. 

It is with that in mind that I will be listening to today’s witnesses and ask, does 

the EPA proposed rule and guidance document take us forward or backward in our 

efforts to protect our Nation’s waterways from oil contamination? 

Thank you, Mr. Chairman. 

Senator Inhofe. Thank you, Senator Jeffords. 
12 

We will continue in our questioning with the early bird rule. 

They will be in this order: Senator Isakson, then Senator Jeffords, 

then Senator Murkowski, and Senator Voinovich. 

Senator Isakson. 

Senator Isakson. Thank you, Mr. Chairman. 

Mr. Dunne, I have heard from a number of agribusiness interests 

in the State and my State’s agribusiness council with regard to the 

agricultural exemption. They are appreciative of the farm exemption but are wondering if, and to what extent, did you look at agribusiness from a standpoint of exemptions from the rules? 

Mr. Dunne. I am not too sure what you mean by agribusiness as 

opposed to farms. 

Senator Isakson. Well, I would say, for example, a crop dusting 

operation, a small crop dusting operation, or other support operations and businesses that might support farming but are not directly in the farming business. 

Mr. Dunne. I don’t think we looked at that as a specific industry 

by itself. I think we are looking at farms in general with the caveat 

that remembering that since 1973, any facility that stored 10,000 

gallons or more, or over 1,320 gallons was subject to this rule. It 

has been true for 32 years. I don’t think we dissected the agribusiness separately. 

Senator Isakson. How is the farm exemption explained? How do 

you define farming in the rule exemption? 

Mr. Dunne. We use the USDA definition where I believe it says that over $1,000 worth of sales a year. I can send you the actual 

definition. 

Senator Isakson. If you would, I would appreciate it. 

[Information submitted for the record follows:] 

‘‘Farm means a facility on a tract of land devoted to the production of crops of raising animals, including fish, which produced and 

sold, or normally would have produced and sold, $1,000 or more of 

agricultural products during a year.’’ 

Senator Isakson. Second, and this may show my ignorance, but 

on the proposed rule, it is open now for comment. Is that correct? 

Mr. Dunne. That is correct, for 60 days. 

Senator Isakson. For 60 days. Going back on the agribusiness for 

a second, if there was a sufficient, specific request for the Agency 

to consider it, if I filed it during that 60 days, is it possible for it 

to be considered for incorporation within the rule? 

Mr. Dunne. Sure. 

Senator Isakson. OK, thank you very much. 

Thank you, Mr. Chairman. 

Senator Inhofe. Thank you, Senator Isakson. 

Senator Jeffords. 

Senator Jeffords. Mr. Dunne, I understand that in 2004, the EPA 

Oil Program Director stated that, FE small quantities of oil can 

have profound and longstanding impacts on the waters of the 

United States and wetland environments, and small facilities often 

cannot afford the cost of responding to a spill.’ In Dr. Corbett’s testimony, he points out that the EPA’s 1995 survey data finds that 

the SPCC compliance reduced spills and cleanup costs at small facilities. It seems that the EPA’s proposal contradicts your own information. 
13 

Can you explain why the Agency proposes to weaken requirements and increase the risk of oil spills at the very facilities that 

your own data suggests they are least equipped to respond to 

them? 

Mr. Dunne. Senator, could you tell me who made that statement? 

I am sorry. 

Senator Jeffords. The EPA Oil Program Director. 

Mr. Dunne. Who is that? 

Senator Inhofe. You are asking who the EPA Oil Program Director is? You don’t know? 

Mr. Dunne. Who is the Oil Director? I am not too sure what individual we are talking about who made this statement. 

Senator Inhofe. I think his name is Dave Hudson. 

Senator Jeffords. Dave Evans. 

Senator Inhofe. Dave Evans. 

Mr. Dunne. Dave Evans, he used to be the Oil Program Director. 

I think it is true that you can have small quantities of oil that 

can do damage to waterways and to aquatic life. There is no doubt. 

I don’t think that we are regressing at all. Actually, we are trying 

to make it simpler for people who store small amounts of oil, so 

they don’t have to have PE certification. I don’t see where that is 

anything more than trying to help them reduce the burden of reporting and lower their costs, but it doesn’t take anybody off the 

hook in terms of whether or not they have to comply with the regulation. 

Senator Jeffords. Mr. Sullivan, we have received testimony that 

small business will incur increased liability and cleanup costs if 

they self-certify a spill prevention plan, and that there will be a severe economic impact on 86 percent of engineering firms in the Nation with less than 20 employees, if EPA’s proposal does go forward. 

Did you analyze these factors in developing your position presented today? And how does the Small Business Administration’s 

Office of Advocacy justify its support of a regulatory change that 

is inconsistent with its mission to promote the goals of small businesses? 

Mr. Sullivan. Thank you, Senator Jeffords. 

First of all, the self-certification reform of which my office is very 

supportive does eliminate the requirement for professional engineers to certify. So to the extent that you have built a business 

model on being a PE to certify small facilities, then there may be 

less business. 

With respect to the self-certification reform, small businesses 

have come into my office and said this is something that makes 

sense, really for two reasons. One, the small businesses believe 

they are in a good position to make that certification themselves, 

and two, from an environmental compliance perspective, there is 

widespread acknowledgment that there aren’t enough small facilities in the environmental compliance program right now, and there 

is some evidence that a self-certification program will increase the 

amount of small facilities that start paying attention to these 

issues. 

I will use, as an example, the Massachusetts Environmental Results Program, where they instituted a self-certification program 
14 

particular to dry cleaners. Before that self-certification program 

came into existence, less than 10 percent of the dry cleaners were 

in conversations with the Massachusetts Department of Environmental Protection. Two years after the self-certification, 95 percent 

of the dry cleaners in my home State were involved in environmental compliance efforts with the Environmental Protection Program in Massachusetts. So the self-certification reform, we believe, 

will result in greater compliance rates across the board. 

Senator Jeffords. Mr. Dunne, in Dr. Ott’s testimony, she points 

out some of the evolutions that have occurred in the oil spill 

science since the 1970’s, most notably the toxic components of oil 

remain in the environment for an extended time and can cause significant harm. 

How has the EPA incorporated modern day knowledge about oil 

spills into the Agency’s analysis of the impact on this rule? 

Mr. Dunne. Well, I am not too sure I can answer that with any 

certainty in terms of the science of it. There is no doubt there has 

been some improvement in technology. Remember, Senator, that 

the EPA and the Coast Guard every year respond to oil spills, and 

we do learn a lot about oil spills in that regard, in terms of the 

breadth of having to clean them up, and how you clean them up, 

and what the cost is to clean them up. I will check to see in terms 

of that particular area, in terms of scientific research, but I don’t 

believe it had a huge impact in terms of what we are considering. 

Senator Jeffords. Thank you. 

Senator Inhofe. Thank you, Senator Jeffords. 

We have been joined by Senator Thune from South Dakota and 

Senator Vitter from Louisiana, and I ask if you have any opening 

statement you would like to make at this time. 

Senator Thune. 

Senator Thune. Thank you, Mr. Chairman. 

I don’t have a long statement. I have got statement that I would 

like to have included in the record. I do appreciate your holding today’s full committee hearing on an issue that could have a potential impact on farmers in my State of South Dakota. 

Senator Inhofe. Let me interrupt you. I was reminded that Senator Voinovich, who was here first, had not given an opening statement. 

Senator Voinovich, did you want to? 

Senator Voinovich. Mr. Chairman, I—— 

Senator Inhofe. We have a friendship that goes all the way back 

to when we were both mayors of cities about 30 years, and I don’t 

want that to change now. 

Senator Thune. I am glad to hear this doesn’t have something to 

do with seniority. 

[Laughter.] 

OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. 

SENATOR FROM THE STATE OF OHIO 

Senator Voinovich. Mr. Chairman, I am just glad that you have 

called this hearing today to discuss the proposed rules that streamline the Spill Prevention, Control, and Countermeasures Program. 

I think that, from my perspective, these rules need to be clarified. 
15 

I thank you for holding the hearing, and I will wait for my questioning time. 

[The prepared statement of Senator Voinovich follows:] 

STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM THE STATE OF

OHIO

Thank you, Mr. Chairman. I am pleased to be here today to discuss the two proposed rules that are aimed at streamlining the Spill Prevention Control and Countermeasure Program to help clarify some of the confusion that is felt by those affected by this. I understand this is clearly an important issue that affects our farmers, as well as our airports and others. Thus, we are here today to better understand how this rule will really help our constituents. For instance, I know the Ohio 

corn growers were concerned about the effects of the 2002 rule and how the rule 

would affect their members and Ohio farmers. By the same token, they are heartened by some changes that are now being proposed to the 2002 rule. 

Today, we are examining whether those changes are adequate and equitable. 

Thank you, Mr. Chairman, for holding this hearing, and I thank the witnesses for 

being here. I look forward to your comments. 

Senator Inhofe. Senator Thune. 

OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR 

FROM THE STATE OF SOUTH DAKOTA 

Senator Thune. I would just echo what I said before. This is an 

issue that has potential impact on a lot of farmers across this 

Country and my State of South Dakota. As someone who has some 

experience with the Small Business Administration, I do appreciate 

EPA’s willingness to work with SBA and other stakeholders in an 

attempt to provide clarity to a rule that has caused a great deal 

of confusion for those who use and store petroleum products. While 

I would agree that it is wise public policy to require spill prevention and countermeasure requirements for facilities that pose a risk 

to the environment, I don’t believe it is necessary to require family 

farmers to adhere to the same requirements that petroleum terminals and electric utilities are currently required to meet. 

And thankfully, after a great deal of input from the regulated 

community, I am pleased to see that EPA’s proposed rule will not 

be applied to farms with less than 10,000 gallons of storage capacity until more data can be collected and analyzed. I realize, as well, 

that while the EPA has attempted to build in a great deal of flexibility when it comes to compliance with the proposed rule, I also 

believe more can and should be done to ensure that this rule is as 

targeted and focused as possible. 

And so, Mr. Chairman, like you, I have concerns regarding various aspects of this rule, and in the interest of moving along with 

this hearing, I will wait to ask questions when we have an opportunity as well. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Thune follows:] 

STATEMENT OF HON. JOHN THUNE, U.S. SENATOR FROM THE STATE OF SOUTH

DAKOTA

Mr. Chairman, I appreciate you holding today’s full committee hearing on an 

issue that could have a potential impact on farmers in my home State. 

As someone who formerly worked at the Small Business Administration, I appreciate EPA’s willingness to work with the SBA and other stakeholders in an attempt 

to provide clarity to a Rule that has caused a great deal of confusion to those who 

use and store petroleum products. 
16 

While I agree that its wise public policy to require spill prevention and countermeasure requirements for facilities that pose a risk to the environment, I don’t believe its necessary to require family farmers to adhere to the same requirements 

that petroleum terminals and electric utilities are currently required to meet. 

Thankfully, after a great deal of input from the regulated community, I am 

pleased to see that EPA’s proposed rule will not be applied to farms with less than 

10,000 gallons of storage capacity until more data can be collected and analyzed. 

While I realize that the EPA has attempted to build-in a great deal of flexibility 

when it comes to compliance with the proposed SPCC rule, I believe more can and 

should be done to ensure that this rule is as targeted as possible. 

Mr. Chairman, like you I have concerns regarding various aspects of the SPCC 

rule and in the interest of moving along with today’s hearing, I will wait to ask additional questions of today’s panelists until they have had an opportunity to give 

their testimony. 

Senator Inhofe. Thank you, Senator Thune. 

Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR 

FROM THE STATE OF LOUISIANA 

Senator Vitter. Mr. Chairman, I will look forward to questions. 

Senator Inhofe. All right, very good. Now we will continue with 

our questioning. 

Senator Murkowski. 

Senator Murkowski. Thank you, Mr. Chairman. 

Mr. Dunne, this is in the area of the airports and the airplanes. 

In Alaska, as you probably know, we have a host of small airports, 

very small airports, where we certainly would not have storage capacity exceeding 10,000 gallons but probably over the 1,360 gallons. 

What will the effect be on so many of Alaska’s very small, little 

airports? What are we going to have to do out there in order to 

comply with these regulations? 

Mr. Dunne. Well, there are a couple things that I think are 

worthwhile. The smaller airports are not going to be subject to the 

same secondary containment as a larger airport, and they are going 

to be able to make a decision in terms of what is the best way. For 

instance, you could have a containment pad where you have the 

tank and sort of absorb your oil there. Also, if it is under 10,000 

gallons, if that is what they store, they don’t have to have a PE 

come, and they can make their own determinations. And, of course, 

the third thing is whether or not they are close enough to navigable waters to make a difference. 

So I think there is some consideration and some relief we have 

given the airports. We are still going to work with airports, particularly the small airports and see if there is more information that 

could be developed to make sure that we don’t add any more burden to the regulation already. 

Senator Murkowski. The concern that we have is you may have 

a little strip that serves a community of 35 people, where we certainly want to do what we can to prevent any spills, but if you go 

too far with this, you may not be able to comply and meet these 

regulations because you have got to have these containment areas 

in an area where you just don’t have that ability. 

Let me ask you about the animal and vegetable oils provision 

and the rule change there. In Alaska, we have a great number of 
17 

fish processors that store fish oil, and this is again usually in excess of 1,360 but not exceeding the 10,000 gallon capacity. 

How will this rule change affect those businesses, these fish processing business? 

Mr. Dunne. Well, basically, it will add the same advantage that 

any other small business has or people who have small amounts of 

oil that fall into that range between 1,320 and 10,000 gallons. The 

oil one is a difficult thing to deal with because there is an interesting argument that oil is not toxic, and indeed it doesn’t have the 

same toxic characteristic as petroleum as we generally think of it. 

Vegetable oil that gets into water has some of the same effects. It 

has the same effect as crude oil in that it will suffocate aquatic life. 

It can create havoc in terms of drinking water systems. So I don’t 

see where we have been able to accomplish a heck of a lot, except 

to give the small operators, as you mentioned, some relief in terms 

of how they go about writing their plan. 

Senator Murkowski. Well, and to that, Mr. Sullivan, maybe you 

want to comment on this as well because you were speaking to 

Senator Jeffords about this, and this is the allowance for the selfcertification. Now from Alaska’s perspective where we will have so 

many small business operations, I think that they will welcome 

that as an opportunity, but the question really remains, how we 

can explain that allowing for the self-certification is not going to 

have significant environmental risk. 

Mr. Sullivan. Senator, I think that looking at the whole set of requirements, in order to take advantage of the self-certification, deserves some comment in this hearing. In order to qualify for the 

self-certification, it is more than just being a small business. It is, 

in fact, being a good environmentally compliant small business because the reforms strike the balance of recognizing that small businesses do not have the where-withal to comply with too many 

rules, regulations, laws, mandates, and so forth, but also should be 

compliant with some level of environmental, work place safety, and 

other regulations. 

So, in order to qualify for the self-certification, you have to have 

had no spills for 10 years. Or if you have been in business for less 

than 10 years, you have to have documented that you have had no 

spills in the entire time that you have been in existence. Those 

same types of reforms that get into the integrity testing, where 

small firms will be allowed to have a visual inspection instead of 

hiring a PE or have integrity tests, it is the same type of balance. 

You have to have secondary containment. Those tanks have to pass 

stringent fire code and FAA requirements in order for those tanks 

to even be sold and purchased by those small airports. 

So I want to make sure that the record does reflect that these 

reforms strike the balance between removing unnecessary or duplicative requirements, but at the same time, making sure that there 

are environmental protections guaranteed. 

Senator Murkowski. How much flexibility will actually be worked 

into that, though? Because, say you have a company, a small business that has been in operation in excess of 10 years and did have 

a spill, and they handled their spill exactly as anyone would want 

and had cleaned it up 100 percent. Do they get any allowance for 

that, or is it, sorry, your 10 years has to be completely untainted? 
18 

Mr. Sullivan. Senator, the self-certification reforms really are 

about encouraging small facilities to come into the regulatory system, establish a dialog with EPA and the regional and district offices, even in Alaska. So if you are in the scenario that you laid 

out, you have a small facility that obviously has a history and a 

relationship with the local office, there are enough flexibility in the 

enforcement regime that EPA manages to make sure that a small 

facility that is a good actor is treated as such. 

Senator Murkowski. Thank you, Mr. Chairman. 

Senator Inhofe. Thank you, Senator Murkowski. 

Senator Voinovich, it will be your turn to ask questions. I would 

like to acknowledge that you have made a request, it is a good time 

for us to bring this up, of the Administration’s Great Lakes Plan, 

to have a hearing on that. The answer is yes. You determine a time 

that you want to have that hearing, and we will plan to do it early 

next year if that is acceptable with you. 

Senator Voinovich. Thank you very much. As you know I have 

spent a lot of time on it. The President declared the Great Lakes 

a National Treasure. The EPA has worked very hard on it. I think 

it is appropo for us to have them in here and see just exactly what 

they have done to make sure they are taking the resources they 

have and utilizing them and getting the biggest return on the investment. Also, I am really interested in finding out, do they now 

have an orchestra leader, because we had two hearings, and they 

didn’t have one. 

Senator Inhofe. I bet we will find out then. 

[Laughter.] 

Senator Inhofe. You have been championing that cause for a long 

time, and it is time to get to the bottom of a lot of unanswered 

questions, and you will have that opportunity. 

Senator Voinovich. Thank you very, very much. 

First of all, I would like to say, thank you for holding the hearing. Second, I think it is terrific that the two of you, that your 

agencies have worked together. One of the things that has always 

bothered me, as a mayor and then as a Governor, was that it 

seemed like Federal agencies didn’t talk to each other. On one 

hand, we are trying to create small business and help them out, 

and you have got the EPA over here, doing their thing. Many 

times, they were working across purposes. So I congratulate you for 

the communication that has gone back and forth. 

Another thing that I would be interested in, just to see how it 

works, is that when I was Governor I came to this committee and 

worked with the National Governor’s Association to require cost 

benefit analysis under the Clean Water Act, peer review, and then 

look at alternative regulations that would not be so onerous on the 

private sector. I would be interested to see the paperwork that was 

done on the cost benefit analysis on these rules. I appreciate your 

sending them to my office or the committee. 

Mr. Dunne. Sure. 

[The referenced Information can be found on page 255.] 

Senator Voinovich. I think the real problem that we have right 

now, and I am not as familiar with it as the Chairman in terms 

of airports and so forth, but in terms of the farm community, that 

is really where I have heard most of our complaints: What in the 
19 

heck is going on? What are these people doing. Are they crazy? I 

will say that our corn growers are happy with the fact that you 

seemed to listen, and there are some changes being made. I think 

it is really important that we have as much of a clarification of 

what all of this means, so they are not out there getting hot about 

something that they shouldn’t be getting hot about. 

I would just be interested in: What are you doing to try to communicate just exactly what these rules through the Farm Bureau 

and other farm organizations in this Country? 

Mr. Dunne. Well, our people who have developed the rule have 

met a number of times with people from the agriculture community. And, Senator, we are committed to work with USDA in terms 

of coming up with even more and better data to make sure that we 

have struck the right balance in this. 

All facilities, including farms, have been covered under this act 

since 1973. The fact is I suspect there has not been good communication since the inception of that legislation or that rule. A lot 

of farmers didn’t understand what their responsibilities are. So I 

think we are going to continue to look at the farm issue and the 

farm problem to make sure that we have struck the right balance 

of having people stay in compliance if they are storing large 

amounts of oil. Certainly the intention of this rule right now, the 

2002 rule and what we are doing in having an extension, is to reduce burden wherever possible and to have some kind of balance 

between environmental compliance and making sure any business, 

including farms, don’t suffer disproportionately in terms of the burden that the Government regulations put on them. 

Senator Voinovich. Specifically, one of the things in the guidance 

that was addressed is it attempts to clarify the facility owner or operator as some discretion to define the facility. However, it goes on 

to put limitations on the discretion. It was our understanding that 

farmers who own several parcels of land spread over hundreds of 

acres could self-define several facilities within that area. However, 

I am not sure that it is very clear in the guidance as to how that 

would work. 

Can you state for the record that farmers and others who own 

very large facilities spread out over large amounts of land will be 

able to divide up their parcels in a reasonable fashion to make compliance with the rule more manageable? 

Mr. Dunne. I will take a look at that, Senator. I am not exactly 

sure how many of these farms we are talking about. I do understand the point that you are making is that a farmer that may be 

doing 10,000 acres of farming would have different plots, not adjacent or contiguous to each other, and whether or not they can be 

considered separately. I think that is a reasonable observation to 

make. 

Senator Voinovich. The other thing is: Who defines navigable waters? I know in the pieces of paper that you put out, I read that. 

Mr. Dunne. Well, it is in court right now, Senator. 

[Laughter.] 

Mr. Dunne. We did have some lawsuits against us, and we were 

able to negotiate everything except navigable waters. It is in the 

U.S. District Court for hearing right now. 
20 

Senator Voinovich. So that once that court decision is made, that 

will clarify it? 

Mr. Dunne. Sometimes it never does, does it? 

[Laughter.] 

Mr. Dunne. We will see. 

Senator Voinovich. Any information you have got on that, I 

would be very interested. 

Mr. Dunne. We will send that. 

Senator Voinovich. Our people are real interested in that. 

Thank you, Mr. Chairman. 

Senator Inhofe. While we are defining, let us also define reasonable expectation of discharge. One of the problems we have here is 

a lack of definition that makes it very difficult for us. It should be 

evident to both of you and other witnesses that the seven Senators 

up here all come from agricultural States. I know that we have a 

lot of concern in my State of Oklahoma, and I am sure they hear 

just as much as we do. 

Senator Thune. 

Senator Thune. Thank you, Mr. Chairman. 

I would echo some of that. I would love to know the definition 

of a navigable waterway because there are a lot of dry creek beds 

in South Dakota that I suspect might qualify which probably have 

no business being in this. Also, the expectation of discharge because that, to me too, is fundamentally what we are talking about. 

When I mentioned earlier the whole issue of targeting and focusing this rule to where it really is effective in capturing in the net 

those particular operations that are really the issue, that, to me, 

seems what we are after here. This wide net that applies to so 

many different operations seems to me to be extremely inclusive 

and particularly harmful in terms of the economic impact it would 

have on a lot of farm operations. I am not talking big farm operations; I am talking small and medium size farm operations. 

With regard to inspections, the program covers over 600,000 facilities, I am told. From what I understand, the inspection rate is 

extremely low. One of the recommendations made by both GAO 

and the Oil Spill Task Force in the late 1980’s was that EPA 

should establish inspection priorities. 

I guess into tying in how this becomes more focused or targeted, 

I am interested in knowing what the Agency’s view is on those recommendations, and has anything happened since they were made? 

Mr. Dunne. Well, we do less inspections today than we did 

maybe in 1986. I did look at the chart. I think that the 1986 high 

mark was because of a flurry of oil spills during that particular 

time. 

I can tell you this, Senator, we are not specifically going to be 

targeting small farmers. In fact, I will guarantee you that we will 

not be. Particularly, the reason we extended this rule to October 

31, 2007, which is almost 23 months, is to give everybody a chance 

to get in compliance. We are not looking at this as a hammer. We 

are looking at this as if we can make our guidance and regulations 

much clearer in terms of what is expected. So we are not expecting 

to go into any small business and target them, even though they 

may have been covered for the last 32 years. 
21 

Senator Thune. I am told there are roughly only about 1,100 facilities that are inspected each year, which would suggest you have 

a lot better chance of being audited by the IRS than you have actually of being inspected here. 

Then if you could clarify, too, one other question regarding which 

farms under 10,000 gallons qualify for the indefinite extension of 

the compliance date. I ask that question, too, because I have heard 

conflicting interpretations that it would only apply to farms that 

are currently in compliance with the 1973 rule, which is somewhat 

confusing to me, seeing that an overwhelming majority of farmers 

were unaware that that ruling applied to them until it was amended in 2002. 

Mr. Dunne. I think that is a correct interpretation. If you were 

covered by the rule, whether or not you knew it or not, you should 

have a plan or you should be developing a plan, or amending if 

that is necessary. So the extension of the date is you get plans up 

to date to October 31st, 2007, before implementation. A farm that 

has not been in compliance is going to have ample time to get into 

compliance by 2007. 

Senator Thune. The delay would apply widely then. I guess what 

I am asking is: Is the EPA’s reprieve a very narrow one? 

Mr. Dunne. Yes. It is not as broad as all 152,000 farms, and I 

think that is an accurate figure that we think are covered, don’t 

have to do anything between now and October 31st, 2007. If they 

were covered by the rule before, and they didn’t know it or didn’t 

for any reason, they have to develop a plan, and they have to do 

that as soon as possible. The implementation date when we will 

take a look at those plans on whether or not people are in compliance will be after October 31st, 2007. 

Senator Thune. The exemption then is going to be very narrow 

to those 2002 people. 

Mr. Dunne. That is correct. That is correct. 

Senator Thune. Well, I am not sure that helps a lot or does what 

we need to do for a lot of the farmers who are going to be impacted. 

Let me just make one, I guess, final comment if I might, Mr. 

Chairman. I appreciate that clarification. It is probably not the answer I was looking for. It seems to me, at least, that the USDA 

data that I have looked at suggests that this could be a $4.5 billion 

cost, projected compliance cost, for farmers and also very little evidence of oil spills by farmers. If you break that down on a per operator type basis, you are talking conceivably, according to USDA’s 

numbers, about almost $13,000 for an average tank size of 6,700 

gallons. 

Again farm operations, to be profitable in this day and age, have 

to have some economies of scale working for them. In most cases, 

your really small farms, it is just hard to make ends meet. As a 

consequence, these farmers are getting into farming 1,000 acres or 

2,000, or 5,000 acres anymore. You are likely to have, as was noted 

earlier, several different locations. When you aggregate all these 

things and add them up, the compliance costs become very, very 

significant. 

It would seem to me, too, that at a time when we are asking our 

farmers to compete in the world marketplace against countries, 

many of whom have no such requirements imposed on their agri-
22 

cultural economies, and we are fighting every 5 years in a new 

Farm bill for programs, that it is getting harder and harder to 

build political support from some of our colleagues in other parts 

of the Country because they say: We want to put more money. We 

don’t want to subsidize. We want to have these farm programs in 

place. Yet, we impose these costly regulations. 

This is the kind of stuff that we have got to be thinking about. 

Having an approach that really does identify, and I think hone in 

on the real problem, rather than casting a very wide, broad net 

that adds exorbitant amount of cost to production for agriculture 

in this Country and puts us at a competitive disadvantage with 

those that we are trying to compete with in the global marketplace. 

So I think this is a very important issue to address and have resolved. I, again, appreciate the Chairman’s leadership in calling 

this hearing and having us examine this issue and look at what we 

might do to further clarify and hopefully, in working with the agricultural community, make this workable in a way that captures the 

operations that are really creating the risk and the danger, and not 

just putting this enormous cost on the backs of your average farmer across this Country. It doesn’t seem right. 

With that, I yield back, Mr. Chairman. 

Senator Inhofe. It is obvious you have heard from the same people I have. 

Senator Vitter. 

Senator Vitter. Thank you, Mr. Chairman, and I have, too. I 

mostly want to echo those same concerns, and a big part of the concern is just a concern about lack of clarity. 

Senator Voinovich mentioned this very important issue of noncontiguous parcels. To what extent can those be put together to define one entity? To what extent can’t they be? I think that is very 

important to have crystal clear clarity about. 

Just as an example of the lack of clarity I am concerned about, 

the guidance document itself says at one point, FE Inspectors 

should evaluate the intended activity carefully because a determination of jurisdiction is not always straight forward.’ For that 

sentence to be in the guidance document isn’t particularly confidence inspiring in terms of creating clarity, which is what the 

guidance document is supposed to do. So I, first and foremost, want 

to echo all of those concerns that are very important. 

I also want to ask you quickly about the impact on the aviation 

community. I know they have been seeking some changes to EPA’s 

interpretations since 2002 because of some safety and operational 

concerns at airports. To what extent did EPA consult with the FAA 

then or now in terms of the proposed revision? 

Mr. Dunne. Our staff did have a number of meetings with the 

FAA. I think it is clear that we did provide relief from the secondary containment issue that makes it much more flexible for 

small airports in particular to not necessarily put up big barriers 

or big booms around trucks that are parked at night or storage 

tanks that they have. I think that is one of the things which the 

aviation community had asked for, and we were able to satisfy it 

I believe in the regulation. 

But we are also committed, as we are on farms, to ensure that 

we continue to work with the regulated industry to make sure that 
23 

we strike the right balance between the concern of environmental 

protection of our waterways and make sure that we are not placing 

undue burden on airport operators or farmers. 

Senator Vitter. OK, thank you, Mr. Dunne. 

And then very quickly for Mr. Sullivan, is this rule part of a larger reform effort for the manufacturing sector, and can you describe 

that larger effort? 

Mr. Sullivan. Yes. What the Senator is referring to is the Office 

of Management and Budget’s call for regulatory reform nominations. This has been underway for some time, several years. Two 

years ago, John Graham who heads the Office of Information and 

Regulatory Affairs called for regulatory reform nominations, particular to the manufacturing sector. There were three environmental reforms that my office actually has been working with the 

EPA and the Office of Management and Budget to see some 

progress on. This is one of them, and it is certainly a high priority 

for EPA’s reforms particular to the manufacturing sector. 

Senator Vitter. Thank you very much. That is all I have, Mr. 

Chairman. 

Senator Inhofe. Thank you, Senator Vitter. 

We thank both of our witnesses very much for the time you have 

given us, and we would dismiss you and ask the next panel to come 

forward. 

The next panel has, from my State of Oklahoma, Brent 

Cummings who is in the oil business. One of the things I have noticed out of the three hearings we have had, Senator Jeffords, 

where we have had people from Oklahoma in the oil business. I 

think by now they realize these are not giants; these are just small 

business people that are scratching out a living. 

We have James Coyne, a dear friend of mine, one with whom I 

served in the other house, representing the National Air and 

Transportation Association. We park together when we fly our airplanes up to Oshkosh each year. 

Richard Owen, Director of CHS, Incorporated; Dr. Riki Ott, the 

Author and Marine Toxicologist; and James J. Corbett. Dr. Corbett 

is the Assistant Professor of the Marine Policy Program at the 

Graduate College of Marine Studies, University of Delaware. 

We will start in the order that I mentioned with Mr. Cummings 

and then go across. I would like to ask you to try to confine your 

opening statements to 5 minutes, and your entire statement will be 

made a part of the record. If any of you have brought with you 

members of your family, feel free to introduce those, and that will 

not be taken away from your time. 

Mr. Cummings. 

STATEMENT OF BRENT CUMMINGS, VICE PRESIDENT, 

CUMMINGS OIL 

Mr. Cummings. Good morning, Mr. Chairman, members of the 

Committee. I am Brent Cummings. We have a family crude oil and 

natural gas exploration and production company, Cummings Oil 

Company, located in Oklahoma City. 

I appreciate the opportunity to appear before this committee 

today, and I offer my remarks from the perspective of a small, 

independent oil and natural gas exploration and production oper-
24 

ator, and on behalf of the Oklahoma Independent Petroleum Association, an association of more than 1,600 oil and natural gas producers. 

Senator Inhofe. Mr. Cummings, if you could just pause there for 

a minute. What I have tried to do is to make sure people understand that there is a big difference between the giants and the 

independents, and sometimes the needs aren’t the same. So I appreciate the fact that you are characterizing what you have as a 

family business. 

Mr. Cummings. Thank you. 

I have a degree in Petroleum Engineering, and I am responsible 

for all aspects of our field operations, including drilling, completion, 

and production operations. A significant and continuously increasing part of this responsibility includes making sure our company is 

compliant with numerous Federal environmental requirements 

under the Clean Water Act, the Safe Drinking Water Act, the 

Clean Air Act, SARA Title III, Federal Emergency Management 

Agency, U.S. Fish and Wildlife Service, Historic Preservation, Bureau of Land Management, in addition to a variety of State requirements. 

Oklahoma is a mature energy producing State. A significant aspect of our production involves the critical role of marginal wells. 

The Interstate Oil and Gas Compact Commission defines a marginal oil well as producing 10 barrels or less of oil per day, and a 

marginal gas well as producing 60 million cubic feet or less of gas 

per day. Over half of Oklahoma’s oil production comes from marginal wells, which account for approximately 41.4 million barrels of 

crude oil per year from approximately 48,000 marginal wells. 

As Senator Inhofe mentioned, our members explore for and 

produce crude oil and natural gas. In contrast to the large integrated companies, our members do not refine crude oil, and we do 

not market gasoline or heating fuels. 

A new SPCC rule was finalized and became effective August 

16th, 2002. Prior to and since that day, OIPA has raised significant 

concerns regarding the adverse impacts of these regulations on oil 

and natural gas production in Oklahoma. On December 2d, 2005, 

the EPA produced another rule to clarify some of the issues raised 

with the 2002 rule, as well as a guidance document for its inspectors. Unfortunately, none of our issues are addressed in the proposed rule, and the guidance document leaves too much to regional 

inspectors to interpret. 

The intent of the SPCC regulation is to prevent release of oil into 

waters of the United States The EPA’s broad interpretation of the 

definition of waters of the United States, that includes such things 

as dry arroyos, drainage ditches, and road bar ditches, is unreasonable. The various court decisions have complicated this issue as 

well. Additionally, the guidance document does not provide any 

clarity on what is waters of the United States. 

The SPCC’s current one size fits all requirements do not take 

into consideration the risk of marginal crude oil and natural gas 

wells as compared to larger bulk storage facilities and refineries 

that have high throughput and large single tank storage volumes. 

As previously stated, the intent of the SPCC rule is to prevent 

and control oil discharges, not produced water discharges. Oil and 
25 

gas exploration and production equipment used to treat produced 

water should be subject to the same wastewater exemption to the 

same extent as similar facilities in other industrial sectors. 

At non-exploration and production sites, process equipment is excluded from the definition of bulk storage containers, where as at 

E&P facilities, this type of equipment is considered bulk storage 

containers and subject to secondary containment requirements. The 

EPA has singled out the E&P oil and gas water separation facilities for an increased level of regulation while facilities in other sectors using similar or nearly identical technologies are allowed to be 

exempted from these rules. 

The requirement for containment around flow lines and gathering lines is unrealistic and impractical. A more reasonable approach would be to allow operators to implement flexible and reasonable, risk-based flow line inspection and maintenance programs, 

not prescriptive corrosion, integrity, or pressure testing which can 

be extremely costly for small operators. 

Design, construction, and maintenance of secondary containment 

around oil tanks are the most beneficial ways to prevent spills. 

Even though the EPA has recently proposed to streamline the process for smaller facilities in a recent proposal, the proposed threshold does not address marginal crude oil levels. 

The 2002 SPCC rule includes numerous administrative changes, 

taken as a whole, greatly expands and increases the impact of the 

rules on the regulated community. All these changes take away the 

flexibility of the professional engineer or the owner-operator to address the various site specific conditions. 

Additionally, we have never seen a cost or energy impact analysis of the 2002 regulations or data that supports the need for 

changes provided in this SPCC rule, affecting the E&P sector. We 

are aware that the Department of Energy has recently initiated a 

cost impact study and believe that the results will be very beneficial. 

Senator Inhofe. Mr. Cummings, try to wrap it up, if you would, 

please. 

Mr. Cummings. OK. Finally, the EPA should clarify how it plans 

to address the API litigation settlement agreement issues as it relates to the 2002 SPCC rules. The EPA should follow through with 

a rulemaking to clarify these issues. 

We urge the EPA to develop a regulatory approach that is appropriate for our industry. This approach would include a clear, concise, and reasonable definition of waters of the United States for 

the E&P industry and focus on those facilities that reasonably can 

be expected to impact those water, include a benefit/cost analysis 

of the requirements being considered and implemented, address the 

real environmental risk of domestic exploration where past experience has demonstrated a true need for the regulation, and provide 

a practical, economic regulatory scheme that small operators can 

understand. 

I appreciate the opportunity to submit these comments. 

Senator Inhofe. Thank you, Mr. Cummings. 

Mr. Coyne. 
26 

STATEMENT OF JAMES COYNE, PRESIDENT, NATIONAL AIR 

TRANSPORTATION ASSOCIATION 

Mr. Coyne. Mr. Chairman, Senator Jeffords, and members of the 

committee. It is a pleasure to be here. My name is James Coyne. 

I am the President of the National Air Transportation Association 

which represents nearly 2,000 aviation business at literally thousands of airports across the Country in almost every corner. 

I would also like to mention that I am also not unfamiliar with 

some of the important environmental issues that are important in 

this decision. Before I joined Congress, I worked for one of the most 

distinguished environmental consulting companies in the Country. 

I was the individual responsible for the arrest and conviction of the 

very first person who was ever sent to jail for polluting our Nation’s navigable waters in 1978. I served on the Environmental 

Study Conference in Congress with Senator Jeffords. 

Of course after Congress, I was the Washington head for the Roy 

Weston Company which is one of the most distinguished environmental consulting firms in the Country, and I also served as President of the American Consulting Engineers Council which represents the professional engineers which support and service the 

environmental industry. 

But my reason for being with you today is to discuss the impact 

of these spill prevention, control, and compliance measures on the 

aviation industry and the importance of a partnership being developed between the EPA, and the FAA, and industry, and Congress 

to produce reasonable regulations which will benefit all Americans. 

I have a rather involved testimony here, which I hope you will 

submit to the record, but I would like to just briefly summarize one 

or two of the points in that testimony for you. 

The first question is whether or not fuel spills are a significant 

problem at airports from refuelers. We are mostly concerned with 

the impact of these regulations on fixed-base operators and aviation users at airports. While we recognize that fuel spills are an 

important issue anywhere in the Country, we have to ask the question: Are refueling trucks at airports a significant cause of fuel degradation into our waterways? The simple fact of the matter is that 

we see no evidence that that is the case. 

Since I have been with NATA now for nearly 12 years, we have 

been intimately involved in the management and the training of 

FBOs and aviation professionals to deal with the management of 

fuel at airports across the Country. During that time, we introduced the Nation’s leading program for the management of fuel at 

airports, something called the Safety First Program, which is responsible for not only the environmental protection but also the 

protection of individuals, employees, and facilities at airports. 

During that program, we have maintained very careful records 

of potential fuel hazards at airports, and we do not have a single 

example, in the time period that we are talking about, of an airport 

refueling truck rupturing in any manner and causing a fuel spill 

into the environment. Now that is not to say there are not other 

fuel contaminations at airports that stem from the fuel farms, from 

airplanes themselves, or others. With regard to the refuel trucks 

themselves, we don’t have any evidence that this is a problem. 
27 

We have asked the EPA to give us evidence or whether they have 

any examples from their reporting data of this being a problem, not 

only in the last 5 years but since the invention of the airplane. 

And, unfortunately, we have not received back from them any evidence at all that this is a problem. Of course, that is not to say 

it is not theoretically a problem, but theoretically already our industry is doing a great deal to respond to the potential risk of a 

fuel spill. 

I have here for you an example of the training document that we 

give to every FBO in the Country, so that they go through a very 

intensive safety and environmental protection management program to ensure that fuel is not spilled at an airport. Frankly, they 

have a very compelling reason for doing this, not only the protection of the environment but the simple economic reality that they 

are in the business of selling fuel. 

And a fuel spill is a tremendously costly event for an airport, and 

they want to do everything that they possibly can to prevent a 

spill. I submit that the refuel trucks that we have operating on airports today are the most capable trucks in the environment anywhere for ensuring that spills do not happen, and the record has 

shown that this is the case. 

Now the second question to ask is whether there would be unintended consequences if we impose draconian rules on these airport 

locations. I think that is very clear to envision where you would 

force airports to put all of their fuel trucks in one location, obviously making the risk of a significant spill greater or a significant 

fire or a terrorist act. 

But more than that, you would be increasing dramatically the 

amount of truck traffic back and forth across the airport as every 

truck goes to and from one distant appropriate spot. So you would 

have more pollution; you would have more risk of accidents on the 

airport; and you would have a lot more confusion at the airport as 

well. 

Finally, I would like to just give you an example of the type of 

care that our member employees do. This is a daily line report that 

is required for our members to do at airports, where each time they 

get into the truck each day, they do this kind of inspection. I would 

like to submit this for the record as well to show you that a great 

deal of care is being taken by airport managers to ensure that we 

do not have a spill. 

Finally, of course, the most significant effect, if we had draconian 

regulations, would be that many airports in America would simply 

stop selling fuel because the cost of it would be too great, the cost 

of the secondary spill prevention tests, the construction, and so 

forth at facilities. These small airports which might currently only 

sell a few tens of thousands of fuel a year are very, very important 

airports to the American aviation system. So we have got to preserve access to them. 

Fortunately, the EPA has responded, I think, in an intelligent 

way to some of the concerns that we have had. The new proposal 

that has just come out seems to address many of these issues. 

Unfortunately, as Senator Thune mentioned in his questions 

about agriculture, there still is a great deal of confusion in this 

NPRM, especially about the time at which it goes into effect for the 
28 

member companies. We feel that we need great clarity from the 

EPA on this issue as to when the effective date of the rule is for 

the affected businesses across the Country. We hope that this Committee will have some impact in persuading the EPA to help clarify 

that. 

Finally, I would just like to thank the members of the Committee 

for their interest in this important subject and their support for 

better cooperation between the EPA, the FAA, and the industry. 

Senator Inhofe. Thank you, Mr. Coyne. 

Mr. Owen and the other two witnesses, feel free to go a little bit 

longer since the first ones did. 

Mr. Owen. 

STATEMENT OF RICHARD G. OWEN, DIRECTOR, CHS, INC. 

Mr. Owen. Thank you, Mr. Chairman, members of the committee. My name is Richard Owen, and I am a third generation 

farmer from Central Montana. I raise non-irrigated wheat and 

other crops, and I am an elected Director of CHS, Inc., the Nation’s 

largest farmer cooperative. 

I am here today on behalf of the Agriculture Coalition, representing farmers, cooperatives, and related agribusinesses. We appreciate EPA’s recent efforts to develop a more realistic approach 

to its SPCC regulations. However, we are still concerned about the 

impact of its 2002 regulation and its December, 2005 proposal. 

Under EPA’s existing 2002 regulations, any facility, including 

farms and ranches as well as farmer cooperatives and other agribusinesses, with aggregate storage of 1,320 gallons of oil must have 

an amended oil spill prevention plan certified by a professional engineer by February, 2006, and implement that plan by August, 

2006. This includes building secondary containment, such as berms 

or drain basins, constructing fences, providing lighting, security, 

and monitoring, and performing tank integrity testing and other 

requirements, according to a recent USDA study which I would like 

to submit for the record. 

[The referenced report can be found on page 260.] 

Senator Inhofe. Without objection, that will be a part of the 

record at the conclusion of your remarks and the same with Mr. 

Coyne’s report. It will be included in the record at the conclusion 

of your remarks. 

Mr. Owen. Thank you, Mr. Chairman. 

The EPA’s regulations would cover nearly 70 percent of all farms 

as well as many other agribusinesses. For farmers alone, USDA estimates the total cost at $4.5 billion. These requirements would 

apply, even though the same USDA study found less than 1 percent spill history in the case of production agriculture. Many of 

EPA’s requirements are extremely impractical, given the unique 

characteristic of farming. Imagine fencing whole farms or running 

wire to remote sites for monitoring across many miles to reach 

other small refueling sites, especially when you have multiple parcels or fields. 

Based on this, we believe a strong case can be made that farmers 

and ranchers should be exempt from such requirements. That said, 

we have been working with EPA in good faith for the past 3 years 

in support of a more workable approach to address agriculture’s 
29 

concerns. We have also called for a further extension of existing 

compliance deadlines. 

As part of its December, 2005 proposal, EPA would provide an 

indefinite extension for compliance with its 2002 regulations for all 

farms with aggregate storage capacity of 10,000 gallons or less 

until more information can be collected to determine if differentiated SPCC requirements may be appropriate. For farms and 

ranches with aggregate oil storage over 10,000, the EPA has proposed that the compliance dates be extended to October 31, 2007. 

We believe that EPA should exclude all farms, pending such review. 

We also want to comment on the new proposed 10,000 trigger. 

Although it is a significant improvement over the current 1,320 

gallon trigger, it would still hit many farmers. This is because EPA 

continues to look at a farm as a single facility based on a total 

number of gallons. We continue to urge that EPA adopt a site-specific approach. An aggregate standard may make sense for a large 

terminal but not a farming operation where you can have many different fields or parcels with multiple fueling sites and tanks that 

are sometimes filled only on a seasonal basis. 

Finally, we continue to be concerned over the potential impact in 

costs of such regulations on many farmer cooperatives and other 

agribusinesses that serve farmers. 

Again, on behalf of the Agriculture Coalition, we appreciate the 

opportunity to testify before this committee. We look forward to 

working with you as well as EPA to address the concerns of agriculture, while continuing to meet important environmental objectives. 

Thank you very much. 

Senator Inhofe. Thank you, Mr. Owen. 

Dr. Ott. 

STATEMENT OF RIKI OTT, Ph.D., AUTHOR AND MARINE 

TOXICOLOGIST 

Ms. Ott. Thank you for inviting me to testify on the oil spill prevention standards. 

My name is Riki Ott, and I have a Master’s and a Doctorate in 

Marine Toxicology with a focus in oil pollution. I come from a small 

fishing community that is still trying to recover from the long term 

economic, social, and environmental harm from the Exxon Valdez 

oil spill, 16 years ago. 

I would like to share three lessons from our tragedy with this 

committee and explain how each relates to the SPCC proposed ruling. These lessons are: One, oil is far more toxic than we thought; 

two, prevention is critical; and three, better safer cleanup products 

need to be used. 

A paradigm shift in the scientific understanding of oil toxicity 

has occurred since the passage of the Clean Water Act and the Oil 

Pollution Act of 1990. The 1970’s science holds that the oil components, toxic oil components, dissipate quickly, and sublethal effects 

are limited to invertebrates and occur at exposure levels of parts 

per millions. This science underpins the risk assessment assumptions used by EPA in its proposed rule change. 
30 

The collapse of pink salmon and Pacific herring stocks in Prince 

William Sound, well after the Exxon Valdez spill, was a tipping 

point for science. Now scientists link long term harm to fish and 

wildlife with a particularly toxic fraction of crude oil called 

polycyclic aromatic hydrocarbons or PAHs. PAHs were largely ignored by the 1970’s science. 

Scientists now realize that crude oil is 1,000 times more toxic 

than previously thought and that levels of 1 to 20 parts per billion 

PAHs impair reproduction, disrupt cellular function, and generally 

decrease overall fitness of individuals, resulting in declines of populations of birds, fish, and mammals. I’ve attached an article summarizing the new oil toxicity paradigm (Peterson et al., Science 

2003). 

[The referenced article was not submitted at the time of print.] 

Further, these effects are still happening in areas once heavily 

oiled. This was completely unanticipated by the 1970’s science, that 

we would have still relatively fresh toxic oil on our beaches and 

that it would still be bioavailable. 

I have a sample collected from a beach in Prince William Sound 

this past summer that I would like to pass around for the committee. Make sure that you take the lid off to get the full effect. 

Findings in the medical field show that low levels of PAHs also 

harm public health. The upshot of all this new level of understanding on oil toxicity is that in 1999 the U.S. EPA added 22 

PAHs in crude oil to its list of persistent bioaccumulative and toxic 

pollutants. This list includes lead, dioxin, mercury, PCBs, and 

DDT. 

After 34 years, I agree with my Senator that it is time to update 

some old laws, but we need to update the old laws so that they 

match with the new science. I was shocked to hear the EPA representative declare that the science has no effect on this proposed 

rulemaking. The 1990’s oil toxicity science supplants the 1970’s 

science and changes the risk assessment equation. Since oil exposure causes greater known risk to the public and the environment, 

we need to increase, not decrease, spill prevention standards to reduce the likelihood of spilling oil. 

EPA’s proposal to reduce spill prevention standards essentially 

guarantees that small facilities will have more spills. Why? Because industry observers, including the Coast Guard, the National 

Research Council, and the EPA attribute reduced spillage to strong 

prevention standards and increased financial liability. 

Reducing oil spills and oil pollution is a matter of holding operators accountable before and after spills. Oil companies are experts 

at externalizing costs to society and the environment. Facility owners should be held responsible for spill prevention, not exempted 

from it, thus passing the risk to the public. 

The third problem with reduced spill prevention standards is 

that it virtually ensures more chemical products will be used because this is industry’s preferred method of cleanup. Chemical 

products often contain industrial solvents to dissolve oil and grease, 

and thus are environmental hazards. One dispersant that was used 

during the Exxon Valdez cleanup, and that is currently stockpiled 

in Alaska, California, Washington, Hawaii, Texas, Florida, and 

New York contains an OSHA human health hazard and a warning 
31 

to ‘‘Prevent liquid from entering sewers, watercourses, or low areas. 

Contain spilled liquid.’’ Why is this allowed? 

The EPA maintains a schedule of chemical products for use in 

spill cleanups. However, the EPA only screens products for effects 

on wildlife and the environment, not humans. Yet, it is not just the 

environment that is at risk when chemical products are used. It is 

spill responders, and the public in places of multiple use and where 

drinking water or land may become contaminated. There are no 

guarantees that the products are safe for the environment either, 

as pointed out in a paper by EPA staff which I have attached. 

(Nichols 1999). 

[The referenced paper was not submitted at the time of print.] 

Other problems with the product schedule that should concern 

this Committee are a loophole in Subpart J which allows crude oils 

to be blended for product testing, no formal delisting process in 

Schedule C, and no requirement to test stockpiled product periodically to ensure effectiveness. 

In summary, much of what I have discussed is covered in my 

book, ‘‘Sound Truth and Corporate Myth$: The Legacy of the Exxon 

Valdez Oil Spill,’’ which I would like to leave with this Committee. 

I urge this Committee to maintain high spill prevention standards 

for all operators, and to insist that EPA incorporate its new oil toxicity science, and weigh the increased risk to all Americans against 

the benefits to the few from cost savings on oil spill prevention 

measures. 

Thank you for this opportunity to testify. 

Senator Inhofe. Thank you, Dr. Ott. 

Dr. Corbett. 

STATEMENT OF JAMES J. CORBETT, Ph.D., ASSISTANT PROFESSOR, MARINE POLICY PROGRAM, GRADUATE COLLEGE 

OF MARINE STUDIES, UNIVERSITY OF DELAWARE 

Mr. Corbett. Good morning, Mr. Chairman and members of the 

committee. 

I am James Corbett. I am an Assistant Professor in the College 

of Marine Studies at the University of Delaware. The College of 

Marine Studies is an interdisciplinary unit that conducts research 

and education regarding fundamental and applied problems in environmental science and policy. My research develops and applies 

tools and analyses to help reveal and evaluate technology policy alternatives related to energy, environment, and transportation. 

Additionally, I have experience as a practicing professional engineer who helped facilities comply cost effectively by certifying Spill 

Prevention, Control, and Countermeasures Plans, and I have experience as an operating engineer of facilities and ships that store, 

transport, and handle oil. 

SPCC plans protect businesses, both small and large, from direct 

cleanup costs and liability for damages. Oil spills and discharges 

from routine operations impair our Nation’s fertile land, the water 

network that gives it life, the living ecosystems impacted by oil toxicity, and the public health. The costs of preparing SPCC plans afford businesses the benefits of fewer spills, better control of routine 

discharges, and countermeasures that may contain spills within 
32 

the facility instead of polluting a facility’s neighboring communities 

and environment. 

In other words, SPCC plans are recognized successes at minimizing the burden of oil spills to business and society because they 

reduce the risk, both the likelihood and the consequences of oil 

spills. 

From a policy perspective, good environmental regulation reduces 

impacts and costs of pollution that are external to the facility’s normal operation. This remains an explicit purpose of the original 

SPCC plan requirements and objectives. In this regard, a good 

SPCC plan is more cost effective through prevention, control, and 

countermeasures within a facility than the direct and indirect costs 

of responding after a spill. 

EPA’s proposed revisions raise the question whether it is more 

beneficial to act to prevent an event or to respond afterwards. EPA 

uses a rationale that argues it is better for small facilities to bear 

the greater burden of liability without adequate spill prevention 

measures. 

Specifically, I have three major policy concerns. No. 1, preventing 

spills appears in the revised rule to be less important for small facilities. Without any risk-based justification, this provision implies 

that only facilities large enough to afford spill prevention plans 

should be asked to do them, while leaving smaller facilities exposed 

to the risk of higher cleanup and liability costs. More frequent yet 

smaller volume spills and discharges can occur from smaller facilities contrary to EPA’s summary statements. 

This is No. 2. The rule indefinitely allows agricultural facilities 

to avoid SPCC plan compliance even though spill prevention may 

better protect rural farming areas of our Nation. PE expertise, in 

fact, can help farmers whose job is feeding America by providing 

the expertise for alternative prevention measures. 

And No. 3, the proposed revisions weaken certification requirements by relying less on independent professional expertise. Justifying self-certification of SPCC plans on the basis that no spills occurred in the last decade is like allowing me to write prescriptions 

for my child, instead of requiring a physician’s educated examination and judgment, because my child hasn’t had a serious illness 

in the last 10 years. It provides no public guarantee or sufficient 

requirement that the person certifying the plan possesses education, professional qualification, and the commitment to public 

safety that the professional engineer license does require. 

I think what I will do at this point is let the rest of my testimony 

be submitted in written form and welcome any questions that you 

may have. 

Senator Inhofe. Well, thank you, Dr. Corbett. 

We will have a series of questions. It is my understanding that 

both Senators Carper and Voinovich will be coming back, and they 

will join us in the questions if they do make it back. 

Mr. Coyne, as you know, I am very familiar with how airports 

operate, and I think of a berm and what that would do in terms 

of safety. Well, let me ask you this way. I notice at almost every 

airport I go in and out of, the drains are there. I assume that 

might be local jurisdiction, or it might be State, or is that a Federal 
33 

law? And why would that not take care of the risk that would be 

there in the case of an oil spill the same as a berm would? 

Mr. Coyne. I think that the only thing you can really say about 

airports across the Country is that every one is different. Some of 

them are owned, of course, by private entities; some of them are 

owned by the local Governments; some of them are owned in conjunction with something like the Port Authority. So they have a 

wide group of regulations. And, obviously, the location of the airport affects a lot of the drainage requirements as well, the State 

requirements. 

But I think your point is quite accurate that there are very significant local and Federal and State regulations that affect drainage that exists at airports. Now these rules typically are managed 

by the FAA in conjunction with EPA and local and State Government. One of the things that has been troubling about this process 

over the last 4 years since 2002 is that the EPA and the FAA really 

didn’t have very good communications between the two of them 

until very recently. 

But I think you are absolutely right. The drainage alternative is 

clearly much preferable to the whole question of berms because 

berms at an airport are almost impossible to envision in a practical 

sense. You have got issues that would be involved with water collecting on the berms and turning into ice and becoming a hazard. 

You have got issues related to snow removal. You have got issues 

related to aircraft moving around. Especially also you have the 

issue of many airports, as you know, have two or three or four or 

five or six FBOs providing fuel. From all of those trucks, from all 

the different sides of an airport, to be told to go to one location because it is bermed, you would have trucks driving back and forth 

across runways, across ramps and so forth, all to go to one particular location, tremendously increasing the amount of truck activity at an airport, increasing air pollution, increasing the risk of an 

accident. 

It is much more logical to have those trucks parked close to 

where the planes are going to be coming in and allowing them to 

be ready. As you know, a plane can arrive at any time 24 hours 

a day. So you have got to be ready to deal with that uncertainty. 

So we feel that requiring all of the trucks to go to a berm location 

at an airport would be almost totally unworkable, which is why we 

are happy, frankly, that the EPA has in their draft proposal suggested that they, too, finally understand that that is not workable. 

Senator Inhofe. That is a good answer. A lot of people are not 

aware of the activity that takes place in a GA airport, as you and 

I are. 

Mr. Cummings, the OIPA has done a series of white papers on 

the issue related to this rule, and without objection, I will make 

those a part of the record in this hearing. 

[The referenced material can be found on page 255.] 

Senator Inhofe. In its guidance document, the EPA reiterates a 

settlement agreement reached between the API and others on 

whether produced water from dry natural gas wells was covered by 

wastewater treatment exemption. Can you explain to the Committee why the produced water from oil wells should be exempt as 

it had been under 1973 or prior to the 2002 rule changes. 
34 

Mr. Cummings. Yes. The produced water is stored in a separate 

tank. It is not a crude oil storage tank; it is a separate tank that 

is just for the produced water. Occasionally, they will have a thin 

film of oil or perhaps a sheen, but that volume is typically very, 

very small, less than one barrel, and does represent a significant 

risk to the environment. 

Senator Inhofe. All right. The following is a statement by the 

American Society of Civil Engineers, and I am going to read this 

and then ask you a question. I will have this as a part of the 

record. 

‘‘The plan to allow owners, who have had more than 30 years to 

adjust to the PE certification program, to verify for themselves that 

their facility complies with the SPCC rules is particularly ill-advised. Typically, these facility owners are not technically competent 

enough to make,’ they are talking about you now. 

[Laughter.] 

Senator Inhofe. ‘‘They are not technically competent enough to 

make the complex calculations necessary to certify compliance with 

the SPCC’s program requirements.’ Do you agree that you are not 

competent enough to do this? 

Mr. Cummings. No, I believe I am competent enough to do this. 

The calculations are fairly simple volumetric calculations, taking 

into consideration the tank size, the freeboard for rain, the daily 

production of oil. These are all very simple, straight forward, volumetric calculations that most people learn in their high school 

years. 

Senator Inhofe. All right. 

[Laughter.] 

Senator Inhofe. Let me go ahead, and we will have a second 

round. I have a couple other questions. 

Senator Carper has joined us. Would you like to make an opening statement, and then we will go to Senator Jeffords for his questioning, if that is all right? 

OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. 

SENATOR FROM THE STATE OF DELAWARE 

Senator Carper. Thanks, Mr. Chairman and to my colleagues, 

and to our witnesses, especially those from Delaware. Any spouses 

who might be in the audience, we welcome you today. I appreciate 

the chance to say a few words this morning. 

On the one hand, we have a need, I think, to be responsive and 

sensitive to the concerns raised by small businesses, by farms, by 

farmers with respect to developing the ability to respond to spills 

from their storage operations, and to use some common sense. 

I apologize for not having a chance to hear from our other witnesses. I just got a quick summary of your testimony here from my 

staff. 

What I understand is that back in the 1970’s, a policy was adopted. Correct me if I am wrong here, my colleagues. My understanding is a policy was adopted in the 1970’s that said pretty 

much if you have petroleum, oil, or something like that stored in 

fairly large quantities that you had to had an engineer certify that 

you had the capability to clean up a spill that might occur. 
35 

I understand that a couple years ago, someone came in and suggested, maybe it was the Small Business Administration, but someone has come in on behalf of small businesses to say that, rather 

than having an engineer come in and certify that the cleanup 

structure is in place, that it might be all right to just self-certify 

for those storage tanks that are less than 10,000 gallons. 

I have some concerns about that. I am anxious to have a change 

to ask some questions of our colleagues. So I think it is timely that 

we are doing this, and hopefully we will get to the bottom of it and 

get some answers. Again, to our visitors, our guests, thanks for 

joining us and for sharing your insights with us. 

Thank you. 

Senator Inhofe. Thank you, Senator. 

Senator Jeffords, you are recognized for questions. 

Senator Jeffords. Dr. Ott, based on your knowledge about the behavior of oil in aquatic environments, if smaller water bodies such 

as small streams or wetlands were subjected to the uncontrolled release of petroleum products, how would those ecosystems be affected, and would those effects be felt in receding waters of such 

streams? 

Ms. Ott. Thank you for your question. 

Based on my experience and the new science, we need to be more 

careful. We found that a lot of these waterways do connect, and 

what happens upstream is reflected downstream. There is a growing concern that in the 1970’s, we understood vaguely, scientifically 

speaking, that water quality was connected to environmental 

health. Now with the new science on oil pollutants and other 

chemicals, our understanding is much more sophisticated, and we 

are able to very much hone in on how water quality and extremely 

low levels of chemicals definitely affects wildlife. 

So, yes, upstream affects downstream. 

Senator Jeffords. Thank you. 

Dr. Corbett, can you describe what the mechanism is in the existing SPCC program for the public to obtain some degree of assurance that actions are being taken to prevent oil spills, how the 

EPA’s projected rule alters that process, and what role enforcement 

plays in that process? 

I will repeat that if you want. 

Mr. Corbett. I want to make sure. Just repeat the first part because I was writing on the second two, so I wouldn’t forget. 

Senator Jeffords. Can you describe what the mechanism is in the 

existing SPCC program for the public to obtain some degree of assurance that actions are being taken to prevent oil spills, how the 

EPA’s proposed rule alters that process, and what role enforcement 

plays in that process? 

Mr. Corbett. Thank you very much. That allows me to sort of add 

to some of the dialog regarding whether facilities managers’ competencies are called into question in absolute sense or not. I don’t 

dispute the competence of the managers that I worked under when 

I worked in facilities that stored and managed oil. 

In many, many cases, what I think the rule does in the original 

form is it ensured the public that there was an expert reviewer on 

their behalf of the plans that were in place. For well-run facilities, 
36 

PE certification is a simple matter, reinforcing and confirming the 

good operational judgment of good managers. 

What the proposed changes seems to have done is to disconnect 

that expertise from the individual certifying, and essentially say 

that a facility that has been spill-free for 10 years can have whatever the current manager is, regardless of their expertise and experience, certify the plan. That is sort of like saying that if my car 

hasn’t been in an accident in the last 10 years, anybody can drive 

it expertly, and I don’t believe that that is true. 

The other thing, the last part of your question is one I think is 

a more thoughtful part of it. My first reaction is that the role of 

enforcement would likely be increased by a self-certification system 

because these plans currently are not submitted for public review 

and comment. They are not held in EPA regional offices. They are 

available only onsite for inspection when the plan is written the 

first time or when there is a substantial change to a facility’s infrastructure and operations. That is the trigger that brings the PE 

into the system to ensure that the plan is cost effective for the 

business and protects the public health and environment according 

to the regulations. 

Senator Jeffords. Dr. Ott, can you comment on Mr. Dunne’s 

statement that the evolution of science regarding oil spills did not 

have a major impact upon their proposed rule? 

Ms. Ott. I completely disagree with that comment. I think it 

shows a lack of understanding of the new science. The new oil toxicity science is like Columbus discovering suddenly that the world 

is round. It shifts everything. The new science completely changes 

the risk assessment equation. There is new risk to public health 

and the environment, now we know oil is more toxic. This is new 

risk. That new risk needs to be factored into the cost-benefit analysis to weigh against the supposed benefits or cost savings from inadequate oil spill preparation. So, it really does completely change 

the formula. 

I wanted to do one follow-up comment. There has been a lot of 

discussion about navigable waters and what waters exactly does 

the Clean Water Act protect. It seems to me here we need to use 

a little bit of common sense about the Clean Water Act: it is supposed to be protecting waters for all Americans. 

I just want to reflect on what happened with the wolves when 

they were introduced into Yellowstone. Scientists found that populations of songbirds increased. Scientists had no idea that the songbirds were connected to the wolves. The pathway was that the 

wolves increased the predation on deer. Deer were stripping the foliage off the bushes. So by decreasing the deer population, increased habitat for songbirds. 

This is the kind of thing that is going on with waterways. They 

are all connected. Right now in Alaska, we are fighting to prevent 

industry from having mixing zones in spawning streams of salmon. 

Industry is arguing that they can put pollutants directly into salmon spawning streams and not have an effect. This is crazy. We 

know better than this now. 

So there is increased risk, and we need to have better standards 

to prevent spills as a result of this increased risk. 

Senator Jeffords. Thank you. 
37 

Senator Inhofe. Senator Carper. 

Senator Carper. Thank you. 

Let me just ask my colleagues: When were you elected to the 

House of Representatives? 

Senator Inhofe. 1986 

Senator Carper. 1986. 

Senator Jeffords. 1974. 

Senator Carper. Yes, it has been a while. I was elected in 1982. 

I recall, and I remember this because when I hired a woman to be 

my Legislative Director, her name was Janet St. Amand, she had 

previously worked, I think, maybe as the Legislative Director for 

then Congressman Jim Coyne, and it is just very nice to see you 

again. I think you and Peter Kostmeyer, I recall, kept swapping 

seats. 

[Laughter.] 

Senator Carper. I think every 2 years, we would have a merrygo-round there. 

Mr. Coyne. It was a close district, yes. 

Senator Carper. It sure was. It is great to see you again. 

Mr. Coyne. Thank you. 

Senator Carper. Thanks. I kid people, and I say I enjoyed working for Janet St. Amand as my Legislative Director. So you know 

what I mean. It is good to see you again. 

Let me just kind of go down the line. I have some questions, especially for Dr. Corbett. Since I missed your testimony, I want to 

ask each of you to just give me like a 30-second takeaway. What 

would you have me take away, basically? If I don’t remember anything else from you said here today, what would you have me take 

away? 

Mr. Cummings. That secondary containment for oil tanks is the 

primary preventive measure and the requirements for integrity 

testing, certified plans, etcetera are not going to stop any spills; 

secondary containment for oil tanks is the thing that will stop 

spills and provide the most benefit. 

Senator Carper. All right, thank you. 

Congressman Coyne. 

Mr. Coyne. Senator, I would like you to take away the thought 

that at airports where mobile refuelers were originally subject to 

this SPCC, the EPA has come up with an NPRM which is going 

to provide, I think, a more reasonable solution. However, the solution in their proposed rule is still somewhat awkward and unclear, 

and we need some clarification. 

Also, we need the EPA to work more closely with the FAA because, as you know, at airports as opposed to everybody else you 

are listening to here, the businesses at airports are the most heavily regulated by the Federal Government entity there is. I mean all 

sorts of Federal regulators come to them everyday, and it is much 

more important for that regulation to be developed with close coordination with the FAA to deal with the other issues, so that we 

don’t have unintended consequences from EPA acting by itself. 

Senator Carper. OK, thank you. 

Mr. Owen. 
38 

Mr. Owen. Senator, the Agriculture Coalition thinks that farmers 

should be exempt from the SPCC rules based on the data that has 

been submitted. 

Senator Carper. Good, thank you, sir. 

Dr. Ott. 

Ms. Ott. Oil is more toxic than we thought 34 years ago, and this 

should be reflected now in all of our laws that have anything to do 

with regulating oil pollution. The new science on oil toxicity shows 

increased risk to public health and the environment. 

Senator Carper. All right, good, thanks. 

And Dr. Corbett, I have a couple more specific questions I want 

to ask of you. I understand your wife is here with you today, Beth. 

Mr. Corbett. Yes, thank you. 

Senator Carper. I want to welcome her to these hallowed halls. 

It is great of you to come. Thanks for bringing your husband and 

allowing him to speak. I can just barely see your lips move when 

you speak, so it is pretty clever the way you two do that. 

Mr. Corbett. I had to practice a lot on that. 

[Laughter.] 

Senator Carper. Dr. Corbett, can you explain your experiences 

with the Spill Prevention, Control, and Countermeasures plans? If 

you could, could you explain the role of professional engineers in 

the certification process and the costs that are involved in that 

process? 

Mr. Corbett. Yes, I can. My own experience was working for another very well respected, but no longer in existence, environmental consulting firm that competed with Mr. Coyne’s. In my 

work, we would have staff and licensed engineers on a team, preparing plans for facilities. Most of these were larger commercial facilities or military installations. 

However, included in the facilities, that we wrote Spill Prevention, Control, and Countermeasures plans for, were facilities that 

leased many, many, many acres to farmers. There was an agricultural operation within the bounds of some of these facilities. So, I 

had the opportunity to evaluate the measures, write the plan, and 

certify plans that successfully protected agricultural lands. 

What is involved in that, in general, is that the preparation of 

the plan is something that managers can do largely themselves, or 

assist directly in. For the PE, the certification requirement essentially means that the engineer has to review the plan, assure that 

it is facility-specific, and assure that it complies with the regulatory requirements. 

Often, however, the professional engineer provides additional 

value to the small business by suggesting more cost effective ways 

to store, manage, or handle the oil, so that they can minimize the 

costs of compliance, and in fact can make some of the tough choices 

where, in practicality, an equivalent measure may be most feasible 

for that facility. 

The point I want to make with regard to that is that with the 

PE’s involvement, we did not produce one size fits all. We produced 

plans that were thoughtful, specific to the facilities, and expertly 

tuned, so that they not only complied with regulations but they 

complied with regulations within the operating and infrastructure 

conditions of that facility. 
39 

Senator Carper. All right, thank you. I think my time has expired. 

Senator Inhofe. We will have another round. 

Senator Carper. That is great, OK. Thanks very much. 

Senator Inhofe. Thank you, Senator Carper. 

Senator Voinovich, Mr. Owen, had a question that I am going to 

try, and you may want to respond to it for the record. In terms of 

the compliance with the 10,000 rule, it is my understanding that 

when we came out with the rule just the other day, that that exempted only those farmers who were exempt under the 1973 rule? 

Is this your understanding? 

Mr. Owen. Yes, that is the way I understand it. 

Senator Inhofe. All right. Would you kind of explain the problems 

in conjunction with that. 

Mr. Owen. Well, if you have a facility on your farm or ranch or 

whatever that is compliant, the way I understand it, under the new 

proposal for 2005, if you are compliant with the 1,320 gallon rule 

that was in force back in the 1970’s, then you will be able to get 

the extension. If you did not comply with that, if you did not have 

the plan in effect that has been certified by a PE, then you are not 

able to get the extension on the new rule. 

Senator Inhofe. OK, that is good. I appreciate that. 

Now you mentioned just a few minutes ago that the cost of this, in terms of farmers, at $4.5 billion I think you said. Is that correct? 

Mr. Owen. That is correct. 

Senator Inhofe. How is it calculated? What components went into 

that calculation? 

Mr. Owen. The USDA and the Agriculture Coalition that did the 

survey, based on a certain amount of survey, they felt they got a 

very good representation from farmers. During that survey, they 

used a lot of numbers. They specified it in the back, actually. It 

would take me a long time to dig through and go through all the 

numbers. 

Senator Inhofe. OK. 

Mr. Owen. Based on the number of farms that would be affected 

and a number that USDA came up with that it felt. 

Senator Inhofe. The reason I asked that is I want to kind of get 

that into an Oklahoma perspective for my own benefit. So I will, 

and if you can help me on that respect, I would appreciate it. 

Mr. Cummings, in a letter of the OIPA, that is the Oklahoma 

Independent Petroleum Association, submitted during the comment 

period on EPA’s notice of data availability, it suggested a threshold 

or recommended a threshold of 42,000 gallons. Without objection, 

that study or that portion of the study would be made a part of the 

record. 

Senator Inhofe. Can you explain to the committee why the 10,000 

gallon threshold proposed by the EPA doesn’t work for small producers? 

Mr. Cummings. Yes. The majority of facilities, small marginal 

well facilities, will have two tanks, typically 210 barrel or 300 barrel tanks. Typically, you would produce into one tank until you had 

a volume of saleable quantity. Then, you would prepare that for 

sale and the produce into the other tank while you were waiting 

for the truck to actually come and actually pick up the 1st tank. 
40 

The 42,000 gallon volume was derived from 1,000 barrels which 

would cover the typical small marginal well tank volumes that are 

on location. Now that wouldn’t typically be a single tank of that 

size, but because most locations have more than one tank, we came 

up with that level to try to take care of both tanks, although any 

single tank would not be near that size. 

Senator Inhofe. To help us resolve a little disagreement we are 

having with my staff, you used the 10 barrels a day as the level 

for marginal production. It used to be 15 barrels a day. Do you remember when that changed? 

Mr. Cummings. I am not sure. There are different entities that 

describe the levels at different volumes. I think in Federal legislation stripper wells are 15 barrels per day or less, but according to 

the Interstate Oil and Gas Compact Commission, marginal wells 

are 10 barrels a day or less. So it depends on whose definition and 

exactly which term you use. 

Senator Inhofe. Yes, I was clearly right. 

[Laughter.] 

Senator Inhofe. Dr. Corbett, in your testimony, you seem to 

argue that the fear of liability is not sufficient to work to prevent 

oil spills. Then Dr. Ott, in her testimony, said, and I think I am 

quoting this, that the fear of liability is what works best. Which is 

it? 

Mr. Corbett. I am first a trained engineer, and so I am afraid of 

everything. 

[Laughter.] 

Mr. Corbett. What I think is I think that the purpose of the rule 

is not to force that calculus. That allowing businesses to individually calculate whether they should be prepared, preventative, and 

control their spills within their facilities, so that their neighboring 

communities and environment are not spoiled, should be the requirement of the rule. That is the way I understand the rule. 

What I see the revisions, the proposed revisions doing is setting 

up a situation that may perversely motivate people to do that calculus, disseminate and distribute their oil storage among facilities 

that do not meet the thresholds under the new proposed guidance 

and put more of our environment at greater risk. 

With regard to some perspective, I have lived in only five States, 

not yours yet, but all of those have been agricultural States, and 

my father was a veterinarian serving ranches and farms in California. From what I can see in the EPA’s own data, there are 

around two million farms in the United States, and only about, I 

think Mr. Dunne said about 150,000 are subject to his rule. 

So I think that if we look at where those are distributed, and the 

USDA has fine map on its web site that show us where, in fact, 

those are, you will see that the farms around the United States are 

located along the watersheds and waterways up and down the Mississippi and the major rivers and in the West on the west side of 

the Sierras. 

Senator Inhofe. All right, thank you very much. 

Dr. Ott, you say in your testimony that by lowering the threshold 

for spill planning and prevention, that the EPA has lessened the 

liability. It has been my understanding that it has really no effect 

on the liability at all, but you contend that it does. Is that correct? 
41 

Ms. Ott. I think we are just arguing over semantics. I am at the 

receiving end of oil spills. From the perspective of my community, 

if additional measures are taken before a spill, that costs money. 

We have all heard today that these prevention measures cost 

money. I equate that with liability. So I think it is just semantics. 

What I am saying is that the money spent up front is going to 

be way less and way better spent than the money spent afterward. 

Senator Inhofe. All right, thank you. 

Mr. Owen or Mr. Cummings, do you have any response to that, 

any thoughts? All right, thank you. 

Senator Jeffords. 

Senator Jeffords. Dr. Corbett, can you elaborate on your comments regarding the fact that the EPA’s proposed rulemaking does 

not consider the consequences from agricultural spills to rural ecosystems may be greater than the consequences of a commercial sector spill in more urban regions? 

Mr. Corbett. In my research and teaching of my students with 

regard to policy analysis, I often use spatial information, maps, 

etcetera to understand whether a rule, or a regulation, or a policy, 

proposed or existing, does what it says it will do. In making this 

proposed rulemaking, EPA provides very little information about 

where these facilities are with regard to the environments that 

they are protecting. Because of that, it is impossible really to judge 

whether the risks and consequences to the environment are greater, are made greater or lessened from the proposed rule. 

However, independently looking at where we know farm facilities 

are, and I would love to find locations where some of these other 

facilities are, we could then do the risk assessment of what would 

those facilities pose in terms of potential consequences if they were 

not using prevention, control, and countermeasures best practices. 

And so, I am not sure that I understand whether they have done 

that at all. It is not accessible in the rule, and I couldn’t find it 

in some of their other public documents. 

Senator Jeffords. Thank you. 

Dr. Ott, given your experiences with the ability of well funded, 

technologically advanced companies to effectively cleanup oil spills, 

what is your reaction to the EPA’s proposal to eliminate the requirement for smaller facilities to have a professional engineer certify oil spill prevention plans and depend more heavily on response? 

Ms. Ott. I shudder at this proposal. We, in Alaska at least, our 

experience is that it is very, very difficult to clean up an oil spill. 

It just, it really cannot be done. It damages. It causes incredible 

damage. Actually, this was the experience of Washington State as 

well. They just had, as you might recall last year, a thousand gallon spill in Puget Sound that caused a lot of harm. 

I think, like I said before, money spent up front for prevention 

is far preferred than having to rely on response. We just cannot. 

I know the technology is supposed to be sophisticated, but the fact 

of the matter is it just does not work very well yet. 

Senator Jeffords. Thank you. 

Senator Inhofe. All right, thank you. 

Senator Jeffords. Am I finished? 

Senator Inhofe. Yes. 
42 

Senator Carper. 

Senator Carper. Thanks, Mr. Chairman. 

Dr. Corbett, did you say your father had been a veterinarian? 

Mr. Corbett. Yes, he is a veterinarian. 

Senator Carper. Does he still practice? 

Mr. Corbett. He is retired now. 

Senator Carper. Where, in California? 

Mr. Corbett. Yes. 

Senator Carper. OK. The question I have is I guess you spent a 

fair amount of time on farms. 

Mr. Corbett. I grew up, helping my dad on ranches and ranch 

farm combinations, yes. 

Senator Carper. OK. In California, I guess, right? 

Mr. Corbett. Yes. 

Senator Carper. I understand that a small percentage of farms 

are required to have these Spill Prevention, Control, and Countermeasures plans. 

Mr. Corbett. Yes. 

Senator Carper. I have no idea what percentage. Is it a few? Is 

it 10 percent, 50 percent? 

Mr. Corbett. The EPA has information from a 1991 survey and 

from a 1995 survey, and then they summarize what they consider 

to be the current profile. Consistently throughout each of those, it 

has been around 8 percent of farms that EPA suggests are subject 

to these regulations. 

Senator Carper. My question is: Do you believe it is necessary to 

do as the proposed rule suggests, and that is to exempt 8 percent 

of the farms from this requirement? 

Mr. Corbett. No. No I don’t. The EPA’s survey data also lists the 

numbers of spills that have occurred in each of the sectors, and agriculture ranks third among the number of spills that have occurred among all the sectors that are subject to this rule. 

Senator Carper. OK. These 8 percent of the farms, how are the 

8 percent selected? 

Mr. Corbett. Well, again, the EPA’s rulemaking is silent on that, 

but my presumption is that those are the ones that are subject to 

the storage requirements. That, I think is clear in the rule. What 

that suggest to me is that these may be not the small farms that 

I was used to going to as I grew up but the larger farms that are 

serving and feeding the Nation. So that is what I presume. I think 

I would like to know that data better myself. 

Senator Carper. Mr. Owen, do you want to make just a brief 

comment on that line of questioning for me, please? 

Mr. Owen. I don’t know anything about the data that the EPA 

has about the 8 percent in California. All I know is that in Montana, and I know a lot of farmers, spills are very, very rare, almost 

non-occurring. 

During the underground storage tank removal period back in the 

early 1080’s, a lot of us pulled up tanks. We had no problems with 

that. We were compliant. A lot of us are being very careful about 

how we handle that fuel because it is getting quite expensive. No 

one likes a spill, not even a little puddle. Things can happen, but 

it is just not that big of a problem that we see. 

Senator Carper. OK, good. Thanks. 
43 

Another question, if I could, for you, Dr. Corbett. I understand 

the proposed rule seems to indicate that it is cost prohibitive for 

these small oil storage facilities to comply with the Spill Prevention, Control, and Countermeasures plans. I guess my question to 

you is: Do you believe that that is an accurate statement of small 

facilities’ capabilities? 

Mr. Corbett. I don’t believe that it is a generally accurate statement. I also believe that there may be conditions where prevention 

and countermeasures plans are impractical. As in the current rule, 

the rules have allowed licensed engineers to make those judgments 

and to look for alternatives. 

I think also there is an opportunity for innovation perhaps to further reduce the burden of these facilities in terms of compliance by 

evaluating ways to better co-locate and better manage and better 

distribute oil discharges in the service of the functions of those industries for small facilities. 

Senator Carper. Do you want to elaborate just a little bit more 

on that? I think you may have opened up a line of thought that 

certainly hadn’t occurred to me. 

Mr. Corbett. Well, when I did reviews of locations and plans, we 

sometimes knew that berming an area was prohibitive to access 

and would create problems. So, we would look at alternatives, spill 

and overflow protection, other sorts of maybe some monitoring options. We would be able, as a licensed engineer, to make those 

tough calls and not use a one-size-fits-all approach. 

Senator Carper. Anybody on the panel want to kind of react to 

what he has just said? 

Mr. Owen. Senator, in Montana where I am from, licensed engineers are very hard to come by, and they are very expensive. If we 

could pass the cost onto somebody else or if I had the money, I 

would be building million dollar facilities right now, but that is just 

not the case. So we are talking about what can we afford and what 

can we not afford, and where are we going to get the best value 

out of this SPCC rule. 

Senator Carper. Thank you. 

Congressman Coyne. 

Senator, in aviation, there are many examples, many, many examples of self-certification where the FAA grants to the pilot, or to 

a maintenance professional, or to others the ability to certify that 

a plane is fixed properly, that training has been done, all in the 

interest of aviation safety regulations. So we have a long history 

of self-certification that has been widely acknowledged as having 

been successful in aviation. 

And we think self-certification for environmental issues at airports where the business at the airports, the airport management 

which is typically a public entity, and the association which can 

also provide guidance to our members, would be a much more effective way of dealing with the unique issues of airports rather than 

to expect every single person, every time to go out and hire a professional engineer who, frankly, may not be as familiar with the 

issues of aviation fuel containment at an airport as someone who 

has been in that business for 20 or 30 or 40 years. 

Senator Carper. Mr. Cummings, I think my time has expired, but 

just briefly, if you would. Thanks. 
44 

1The 2004 initiative to improve manufacturing rules is the most recent in a series of regulatory reform efforts initiated by this Administration since 2001. OMB called for public nominations of rule reforms in the May 2001 and March 2002 Draft Reports to Congress. OMB received 

71 and 316 nominations from the public, respectively. OMB did not issue a public call for nominations in 2003. OMB’s latest report can be found at http://www.whitehouse.gov/omb/inforeg/ 

2005–cb/final–2005–cb–report.pdf. 

Mr. Cummings. I was just going to reiterate, as I said earlier, the 

calculations for spill containment are relatively simple. Many of the 

things in our oil and gas E&P industry are much more serious 

problems, i.e., blowout prevention. Personnel are trained in week 

long courses and do not require a professional engineer to certify 

they are blowout trained. 

Senator Carper. Thanks to each of you. Dr. Corbett, great to see 

you and your wife. Congressman Coyne, great to see you again as 

well. Welcome to all of you. Thanks for your input. 

Thank you, Mr. Chairman. 

Senator Inhofe. Thank you very much. 

Let me just make a comment that when Dr. Corbett, you were 

quoting EPA when you said that only 8 percent of the farms would 

be affected. The USDA, I think they have a position that 70 percent of the farms would be affected. For the record, since we are 

going to conclude the meeting right now, I would like to have anyone who wants to comment on that to do it for the record in writing 

and submit that. 

Thank you very much, all of you, for being here today. We appreciate it, particularly my FE-no, not you, Congressman Coyne FEbut my friend from Oklahoma, Mr. Cummings. 

Mr. Cummings. Thank you. 

Senator Inhofe. All five of you, thank you very much. 

[Whereupon, at 11:17 a.m., the committee was adjourned.] 

[Additional statements submitted for the record follow:] 

STATEMENT OF THOMAS SULLIVAN, CHIEF COUNSEL FOR ADVOCACY, OFFICE OF

ADVOCACY, U.S. SMALL BUSINESS ADMINISTRATION

Chairman Inhofe, and members of the committee, good morning and thank you 

for giving me the opportunity to appear before you today. My name is Thomas M. 

Sullivan and I am the Chief Counsel for Advocacy at the U.S. Small Business Administration (SBA). Congress established the Office of Advocacy under Pub. L. No. 

94-305 to advocate the views of small business before Federal agencies and Congress. Because the Office of Advocacy is an independent entity within the U.S. 

Small Business Administration (SBA), the views expressed here do not necessarily 

reflect the position of the Administration or the SBA. 

In 2004, the Office of Management and Budget (OMB) and Federal agencies undertook a process designed to reduce the regulatory burden on United States manufacturers through 76 targeted regulatory reforms, including several reforms recommended by the Office of Advocacy. More than half of these reforms involved rules 

issued by the U.S. Environmental Protection Agency (EPA).1

At present, EPA is pursuing some 42 suggestions for reform of environmental 

rules affecting manufacturers. The Committee has requested the Office of 

Advocacy’s views on progress made by EPA on one of these reforms, the Spill Prevention, Control, and Countermeasure (SPCC) Rule. 

SPCC BACKGROUND

SPCC regulations were initially promulgated by EPA in 1973 pursuant to the 

Clean Water Act to prevent oil discharges into water. Generally, a facility that 

stores oil of any type in quantities above certain threshold levels is required to abide 

by a Spill Prevention, Control, and Countermeasure Plan. 

Because of the complexity and cost of the SPCC program, many small businesses 

find it difficult to comply with the 1973 requirements and the new requirements 

adopted in 2002. For example, EPA requires covered facilities to prepare spill pre-
45 

2 According to a 1995 EPA survey, facilities with total storage capacities of 5,000 gallons or 

less account for an estimated 48 percent of all facilities, but only 0.2 percent of oil discharged. 

In its own analysis of the 1995 survey, EPA noted that ‘‘facilities with larger storage capacity 

are likely to have a greater number of oil spills, larger volumes of oil spilled, and greater cleanup costs.’’ U.S. EPA, Analysis of the Relationship Between Facility Characteristics and Oil Spill 

Risk (1996). 3The June 2004 letter is located at http://www.sba.qov/advo/laws/comments/epa04–0609.pdf. 4See 69 Fed. Reg. 56,182 (September 17, 2004). EPA also issued a NODA relating to a suggestion to modify the oil-filled equipment requirements. Id. at 56184. 

vention plans that are certified by a professional engineer. The Office of Advocacy 

believes that this is a costly and unnecessary expense for firms with small-capacity 

storage tanks, and EPA’s new proposal addresses this. EPA recognized that small 

volume tanks do not generally pose the same environmental risks that larger volume tanks do, nor do they often require complex plans.2

The stringency of some of the 2002 SPCC requirements prompted the agricultural 

community, electrical industry, airport community, construction industry, oil and 

gas producers, manufacturers, and others to raise issues regarding the adverse impacts of these regulations. The regulated entities were particularly surprised by the 

2002 revisions, given that the stated primary purpose of the amendments was to 

reduce, and not increase regulatory burdens. In response to small business’ outcry, 

the Office of Advocacy has worked extensively with EPA and the regulated communities to identify small business concerns related to this rule since shortly after the 

amendments were published in July 2002. The Office of Advocacy suggested reforms 

to the SPCC requirements in June 2004, including allowing facilities with an oil 

storage capacity below certain thresholds to use streamlined, less expensive requirements.3 We believe that overall SPCC compliance would improve with a simpler, 

less expensive program that is tailored to small facilities. 

On September 17, 2004, EPA issued a Notice of Data Availability (NODA) requesting public comments on the Office Advocacy’s suggested approach for facilities 

that handled oil below certain threshold amounts.4

EPA staff has worked to meet the challenge of reinventing a SPCC rule that has 

suffered from widespread confusion and dissatisfaction about its regulatory requirements. The Office of Advocacy supports EPA’s efforts and is pleased with the improvements EPA made to SPCC requirements through guidance and the proposed 

revised regulatory requirements. Several of our June 2004 suggestions were used to 

formulate this proposal. 

EPA PROPOSES TO AMEND SPCC PLAN REQUIREMENTS

After studying the criticisms of the regulations, and the responses to the two recent notices of data availability, EPA is proposing new amendments to the SPCC 

Rule. We welcome EPA’s proposal to amend the SPCC requirements, and the Office 

of Advocacy is supportive of the specific provisions for small facilities, airports, motive power, and oil-filled equipment. These amendments will provide relief for small 

businesses, while improving environmental protection by facilitating compliance by 

smaller firms. 

SMALL FACILITY PROPOSAL

SPCC regulations require that all SPCC Plans be certified by a professional engineer (PE) who attests that the plan has been prepared in accordance with good engineering practice. 

Based on EPA’s proposed amendment, SPCC Plan requirements will now allow 

hundreds of thousands of small firms to self-certify their SPCC plan in lieu of expensive PE review and certification. Facilities with oil storage of under 10,000 gallons that can provide adequate protection against discharges can now prepare and 

implement a SPCC Plan without the involvement of a PE. Model plans can be written by trade associations that can be readily adapted for a small facility, as was 

successfully done for the accidental release program under section 112 (r) of the 

Clean Air Act. 

INTEGRITY TESTING

Another key issue addressed by EPA in the new proposal involves the integrity 

testing requirements for tanks and containers. Industry experts believe that integrity testing for small shop-built tanks and drums is unnecessarily expensive, and 

is not technically feasible for drums. At an Environmental Roundtable held by the 

Office of Advocacy in May 2004, the National Paint and Coatings Association noted 

that integrity testing just for their industry’s tanks would cost $20 million over a 
46 

5Produced water tanks contain water that was extracted from the oil/water mixture is recovered from the ground using an oil/water separator. 

10 year period. The Office of Advocacy recommended that EPA allow visual inspection without the need for obtaining a costly PE certification for small tanks and containers under specified conditions. 

The Office of Advocacy is pleased with EPA’s proposal for additional flexibility in 

integrity testing by allowing facilities to consult and rely upon industry inspection 

standards for small facilities (under the 10,000 gallon threshold) without employing 

a PE. Using the Steel Tank Institute SP001 industry standard, visual inspection 

will be allowed for all small facilities with tanks of up to 5,000 gallons. As discussed 

in the preamble to the proposal, EPA seeks comment on an alternative to extend 

this SP001 provision to all small facilities (under the 10,000 gallon threshold). We 

expect small businesses will support this provision and it will not present additional 

hazards because all small facilities are required to have release barriers and secondary containment. 

MOTIVE POWER

We also welcome EPA’s proposed elimination of ‘‘motive power’’ equipment from 

the scope of the SPCC rule. The Agency decided that it did not intend to cover tanks 

that are used to provide motive power to tractors, forklifts, mobile cranes, and other 

mobile equipment. EPA realized that it did not make sense for the SPCC rule to 

cover retail dealerships selling tractors, or to include construction sites under SPCC. 

The Agency found that it was not practicable to require containment around vehicles that regularly move about the site. This step will provide relief at thousands 

of facilities. 

AIRPORTS

Owners and operators of airports objected to the burdensome and potentially dangerous requirements of secondary containment of mobile refuelers which operate at 

airports. The airport community has objected that such requirements raise serious 

safety and security concerns. EPA responded to this objection by proposing that the 

‘‘sized secondary containment’’ (the catchment basin must be large enough to contain the capacity of the largest container) requirements be replaced by ‘‘general secondary containment’’ (no sized requirement). The Agency has posed an alternative 

for comment that would limit SPCC requirements to active refueling operations, 

which EPA states is the most common source of airport spills. My office will continue to work with EPA on flexible alternatives. 

FARMS

The Office of Advocacy supports the proposed indefinite extension of the compliance date for farms pending additional study by EPA. With an estimated hundreds 

of thousands of farms subject to this rule (the largest universe of firms subject to 

SPCC), both the U.S. Department of Agriculture and EPA have expressed interest 

in a specific examination of the number and type of oil tanks, the spill history, the 

proximity to U.S. waters, and other relevant issues to determine the appropriate 

course of action. 

OIL AND GAS PRODUCTION FACILITIES

While the proposed small facility rule provides relief for hundreds of thousands 

of small facilities, the 10,000 gallon threshold does not provide relief for thousands 

of independent oil and natural gas producers. A large number of these producers 

and their associations supplied comments on the November 2004 notice of data 

availability, expressing support for a separate approach for these facilities that face 

unique SPCC problems. Issues unique to oil and natural gas production include the 

cost and impracticality of secondary containment around flowlines, and the lack of 

a wastewater exemption for produced water tanks.5 Small businesses in that industry are asking for EPA to propose additional changes for the oil and gas producers 

through rulemaking. 

ASPHALT

As a result of substantial concerns raised by the construction industry, we advocated for the exclusion of asphalt cement and hot-mix asphalt from all SPCC- related requirements in our June 2004 letter. The Office of Advocacy based this on 

the observation that both asphalt cement and hot-mix asphalt are solid-to semi-solid 

at normal outdoor temperatures, and would not flow very far before becoming solidi-
47 

6The National Response Center-Analysis of Data 2000-2003, National Asphalt Pavement Association, August 31, 2004. 7 An active measure requires an action by the facility to prevent a spill from reaching navigable waters, and a passive measure involves a permanent structure designed to prevent spills 

from reaching such waters. 8Proposed Reforms to the SPCC Professional Engineer Certification Requirement: Designing 

a More Cost Effective Approach for Small Facilities, (June 2004) by Jack Faucett Associates for 

the Office of Advocacy under contract SBAHQ-00-D-006. 9 Codified at 5 U.S.C. §§601-612. 

fied. This behavior was confirmed by an industry analysis of spill data provided to 

EPA in August 2004.6 Another approach would be for EPA to draft guidance that 

would advise facilities to rely on active measures to stop any spill from reaching 

navigable waters, based on the most likely spill scenarios as determined using 

sound engineering judgment, in lieu of the more expensive passive measures, such 

as secondary containment.7 We are hopeful that these options remain under consideration. 

OIL-FILLED EQUIPMENT

The Office of Advocacy is supportive of EPA’s proposed reduced requirements for 

oil-filled equipment. The proposal moves away from the more expensive secondary 

containment requirement and allows facilities to substitute an oil contingency plan 

and a written commitment of manpower, equipment and materials to expeditiously 

control and remove any oil that may be discharged. This provision reflects the fact 

that such equipment, unlike storage tanks, has a low spill rate. Such equipment 

rarely requires oil transfers, is generally corrosion-protected, and is frequently monitored and inspected for leaks. 

THE OFFICE OF ADVOCACY IS COMMITTED TO WORKING WITH EPA TO COMPLETE SPCC

REGULATORY REFORMS

On behalf of small business, my office commends EPA for listening to small business concerns while drafting these amendments. 

The Office of Advocacy has worked closely with EPA and other entities to implement needed regulatory reforms. Our involvement has included holding roundtables 

to receive suggestions on needed reforms, working with small business representatives to hear their views, and completing a report in June 20048 addressing small 

facility issues. Congress realized the importance of small business when the Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement Fairness Act (SBREFA)9 were enacted into law. Under the RFA and SBREFA, we look 

for ways to reduce small business burdens without compromising the regulatory objectives intended by the regulating Agency. We believe that EPA’s regulatory reform 

efforts can achieve those same objectives. 

Thank you for allowing me to present these views. I would be happy to answer 

any questions. 

RESPONSES BY THOMAS SULLIVAN TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. Concerns have been raised about allowing facilities to self-certify their 

SPCC plans. Several associations representing engineers oppose the provisions arguing that those operating these facilities do not have the technical expertise to determine how to prevent spills at their facilities. Can you describe for the Committee 

the types of facilities you encountered while developing your proposal on which EPA 

based its December 2005 proposed rule? Would you also please explain for the committee why SBA recommended this approach and if there are other similar Federal 

programs that also contain planning requirements without a PE certification. Finally, please also discuss for the Committee why your office believes self-certification will result in more compliance with the SPCC rule and therefore fewer oil 

spills? 

Response. There are several hundred thousand farms, car dealers, construction 

sites and other small facilities with small amounts of oil storage. Such facilities are 

unlikely to need the services of a professional engineer, at a cost of up to $7,000 

to prepare a SPCC plan for a small facility. During 2003 and early 2004, Advocacy 

met with a wide variety of small business groups, including car dealerships, construction, chemical, paint and other manufacturing, agricultural groups, and utilities. Advocacy believed that small facilities with simple layouts and tanks that are 

not interconnected (e.g., farms, car dealerships or construction sites) did not require 

site visits, nor the help of a professional engineer (PE). The types of facilities subject 
48 

to SPCC requirements are described in detail in the November 2005 EPA Economic 

Analysis of the small facility proposal. 

In September 2003, the Office of Advocacy (Advocacy) provided EPA with a report, 

developed for Advocacy by Jack Faucett Associates (JFA), outlining potential regulatory revisions to small facilities with storage of less than 10,000 gallons. Advocacy 

supported several revisions discussed in the JFA report that replaced blanket PEcertification requirements with set requirements based on volume thresholds. Advocacy recommended that EPA establish a 10,000 gallon threshold for small facilities 

in place of the PE certification requirement. In January 2004, a coalition of 10 small 

business groups wrote EPA endorsing this three-tier self-certification scheme. The 

industries represented in that letter are: Agricultural Retailers Association, American Bakers Association, American Forest and Paper Association, American Trucking Association, Automotive Oil Change Association, Independent Lubricant Manufacturers Association, National Automobile Dealers Association, National Association of Fleet Administrators, National Cotton Council of America, and the Synthetic 

Organic Chemical Manufacturers Association. 

We followed this with a June 2004 letter, accompanied by the June 2004 JFA report, that described the small facility concept in more detail. 

EPA has rules in place for underground storage tanks, hazardous waste generators, and storm water pollution prevention that affect hundreds of thousands of facilities, mostly small firms. These programs, that have been in effect since the 

1980’s and 1990’s appear to be working well, and do not require the services of a 

professional engineer. EPA has issued guidance materials for the regulated entities, 

such as ‘‘Understanding the Small Quantity Generator Hazardous Waste Rules: A 

Handbook for Small Business’’, a 32-page booklet issued in September 1986. This 

booklet was effective in communicating the applicable requirements. This program 

was supplemented by outreach through trade associations. 

Given the fact that SPCC affects hundreds of thousands of facilities, predominantly small business facilities, affecting a large diversity of industries, there is a 

large opportunity to increase compliance rates. The March 2005 USDA survey found 

that 61 percent of farmers were unaware of the applicability of the SPCC requirements to farms. If this survey figure were representative of all farms, the amount 

of farm noncompliance would exceed 61 percent. Thus, there is substantial room for 

improving such a low rate of compliance. We agree with EPA’s Economic Analysis 

to the December 2005 proposal that streamlining the SPCC requirements would create the opportunity for increasing the compliance rate and improving environmental 

protection. EPA stated ‘‘to the extent that the rule increases the compliance rate by 

lowering compliance costs, the proposal will have a positive impact on environmental quality’’.9 The self-certification approach is simpler and less costly, and will 

enable small firms to more readily come into compliance. 

Question 2. The Oklahoma Independent Petroleum Association (OIPA), in their 

letter to EPA regarding the NODA argued that the 10,000 threshold proposed was 

not sufficient because many of their wells once produced significantly greater 

amounts of oil than they currently do. Therefore, the wells have on site storage capacity far in excess of what is actually used. Further, they must accumulate greater 

amounts of oil to make these wells profitable and their smallest facilities are not 

helped by the 10,000 threshold. Do you have any thoughts on their concerns? Can 

you please comment on whether the size threshold in the NODA is sufficient for 

small oil producers? 

Response. While the proposed small facility rule provides relief for hundreds of 

thousands of small facilities, the 10,000 gallon threshold does not provide relief for 

thousands of independent oil and natural gas producers. More than 90 percent of 

these producers are small businesses. A large number of these producers and their 

associations supplied comments on the September 2004 notice of data availability, 

expressing support for a separate approach for these facilities that face unique 

SPCC problems. We agree with these concerns and believe that EPA should examine regulatory revisions for this industrial sector. 

These commenters noted that hundreds of thousands of facilities with marginal 

and non-marginal wells of up to 50,000 gallons could be appropriately exempted 

from the professional engineering certification requirement. Such production facilities, and particularly the marginal well operations, operate at very small profit margins like other small facilities subject to the 10,000 gallon threshold. The industry 

commenters also noted that historical evidence shows that the smaller oil and gas 

production facilities do not pose a significant oil spill risk to navigable water. 

Question 3. Dr. Corbett argues that we should provide any flexibility to affected 

stakeholders and that EPA has not proven such flexibility is needed. Do you agree 

that compliance rates would likely increase significantly if the rule provided the reg-
49 

ulated community with some compliance options as well as being a rule they could 

afford and understand while believing too that it was necessary? 

Response. Given the fact that SPCC affects hundreds of thousands of facilities, 

predominantly small business facilities, affecting a large diversity of industries, 

there is a large opportunity to increase compliance rates. The March 2005 USDA 

survey found that 61 percent of farmers were unaware of the applicability of the 

SPCC requirements to farms. If this survey figure were representative of all farms, 

the amount of farm noncompliance would exceed 61 percent. Thus, there is substantial room for improving the rate of compliance. We agree with EPA that the selfcertification approach is simpler and less costly, and will enable small firms to more 

readily come into compliance. The availability of an affordable compliance option 

and a rule that is easily understood should lead to increased compliance rates. Over 

the past 2 years, we listened to small business groups express doubt about the necessity of these overly burdensome requirements for small facilities. Thus, we believe that compliance with this program would improve if facilities believed that the 

requirements reasonably addressed their own situation. 

RESPONSE BY THOMAS SULLIVAN TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. During the hearing, I asked you whether or not your office analyzed 

the impact of the EPA proposal on the Nation’s engineering firms, 86 percent of 

which have less than 20 employees. You did not provide a response. Please describe 

the results of the analysis that your office performed with regard to the effect of 

the EPA proposal on small engineering firms. If you did not perform an analysis, 

please explain why, and whether you plan to perform such an analysis at this point 

in time. If you do not plan to perform an analysis, please provide a description of 

the criteria that the SBA Office of Advocacy uses to determine which small businesses will receive your support and which will not. 

Response. The Office of Advocacy primarily makes sure that Federal agencies, including EPA, consider appropriate regulatory alternatives to alleviate burdens on 

small businesses, as required by the Regulatory Flexibility Act. Federal courts have 

found that agencies must meet their RFA responsibilities by considering the direct 

impacts of Federal rules on small entities, and not the indirect impacts. In this case, 

the professional engineers are not directly regulated by the SPCC rule. Since engineering firms do not fall under the category of entities directly impacted by EPA’s 

proposal, the Office of Advocacy did not perform an analysis of how they would fare 

under EPA’s proposal. 

Question 2. During the hearing, you stated that, ‘‘—small businesses believe they 

are in a good position to make that certification themselves—’’ Did your office collect 

any actual information from any of the small businesses that visited your office to 

determine the basis for this ‘‘belief’’ and its validity? For example, did you survey 

small businesses that met with you to determine what qualifications they would require the people performing these certifications to have? What were the results of 

this or other similar surveys? 

Response. The Office of Advocacy meets with the small business trade and membership organizations and representatives on a regular basis to exchange information. In addition, we use contractors to perform detailed analyses. The June 2005 

JFA report is an outgrowth of hundreds of hours working with the Office of Advocacy and the industry sectors directly affected by this rule. During 2003 and 2004, 

we organized several Environmental Roundtables where we hosted discussions between the EPA staff and small business representatives. We also met frequently 

with EPA staff to discuss SPCC issues. 

The self-certification option was first presented by small businesses to EPA in a 

January 2004 letter to EPA by a coalition of 10 small business associations. The industries represented in that letter are: Agricultural Retailers Association, American 

Bakers Association, American Forest and Paper Association, American Trucking Association, Automotive Oil Change Association, Independent Lubricant Manufacturers Association, National Automobile Dealers Association, National Association of 

Fleet Administrators, National Cotton Council of America, and the Synthetic Organic Chemical Manufacturers Association. 

We listened to small business, which lead to our June 2004 letter to EPA accompanied by the June 2004 JFA report. 

Question 3. During the hearing, you stated that, ’’there is a widespread acknowledgement that there aren’t enough small facilities in the environmental compliance 

program right now, and there is some evidence that a self-certification program will 
50 

the increase the amount of small facilities that start paying attention to these 

issues.’’ 

-On what statement, letters, reports, or other data are you basing your 

statement that there is ‘‘widespread acknowledgement’’ that small facilities 

are not in the ‘‘environmental compliance program’’? Please provide copies 

of any relevant materials to the Committee. 

-Can you define what you mean by ’’environmental compliance?’’ Do you 

mean compliance with the SPCC rule, with environmental regulations in 

general, or with any other specific environmental rules please explain? 

-You state that there is ‘‘some evidence’’ that a self-certification program 

will increase the number of small facilities that start paying attention to 

these issues. I have two questions. First, please summarize the evidence, 

other that the single example you referred to in Massachusetts, that you 

are referring to and provide copies of any relevant data to the Committee. 

Second, your answer seemed to suggest that small facilities in general are 

out of compliance and in fact, ignoring environmental regulations. 

-Based on your experience in the SBA Office of Advocacy, can you give the 

Committee an idea of the percentage of small businesses that you have 

found ignore the environmental regulations? 

Response. In my response, I was referring to the compliance rates achieved by 

small firms with respect to the SPCC program. EPA staff has informed us about 

their anecdotal compliance experience in the field that there is a high level of noncompliance with SPCC requirements among smaller facilities. A March 2005 USDA 

survey shows a high noncompliance rate among farms (report attached). In addition, 

the Pechan 2006 analysis estimates a noncompliance rate of 61 percent for farms 

(based on USDA) and a 30 percent estimate for nonfarms (based on half the observed farm rate of 61 percent). 

With regard to other self-certification programs, we identified the Massachusetts 

example to benefit your Committee’s evaluation. While I did not research other examples, I expect your staff’s expertise on rules and programs that deal with underground storage tanks, hazardous waste generators, and storm water will provide 

you with evidence on how self-certification affects industry’s attention to their compliance responsibilities. 

Based on my experience as a government official, I have not found that small 

businesses purposefully ignore environmental regulations. 

Question 4. Mr. Sullivan, the Small Business Administration want EPA to allow 

greater flexibility for integrity testing by expanding the scope of the consensus industry standard for small-built tanks. Under the National Technology Transfer Advancement Act, EPA would be required to justify any divergence from accepted industry standards. What data has the Small Business Administration provided EPA 

to support deviation from the consensus industry standards for integrity testing? 

Please provide a copy to the committee. 

Response. The Office of Advocacy recommendation is simply the replacement of 

a 5,000 gallon threshold for a 10,000 gallon threshold permitting visual inspection 

in lieu of an integrity test which is found in the Steel Tank Institute standard for 

aboveground tank inspections, SP001. The explicit purpose of the SPCC regulation, 

unlike the standard, is to prevent discharges into navigable waters, not discharges 

that are contained onsite. It was our technical judgment that it is highly unlikely 

that a tank, with a continuous release detection system and secondary containment 

can discharge oil, leading to oil escaping the containment area and reaching navigable waters. The oil spill data acquired by a 1995 EPA survey was used by our 

contractor to demonstrate only 2 percent of total spill volume is accounted for by 

small facilities with less than 10,000 gallons aggregate storage (see Pechan, 2006 

analysis), which further supports our view that periodic visual inspection of tanks, 

that are inside secondary containment and have a continuous release detection system, is very likely to prevent a discharge from reaching navigable waters. The Office 

of Advocacy comments on the SPCC proposal that were sent today are enclosed 

along with the February 2006 Pechan report that contains supporting data. 

STATEMENT OF BRENT CUMMINGS, VICE PRESIDENT, CUMMINGS OIL COMPANY

Good morning Mister Chairman, members of the committee, my name is Brent 

Cummings. We have a family crude oil and natural gas exploration and production 

(E&P) company, Cummings Oil Company located in Oklahoma City. We operate and 

have ownership in numerous wells in Oklahoma, and have ownership in wells located in Oklahoma, Kansas and New Mexico that are operated by other companies. 
51 

I appreciate the opportunity to appear before this committee today. I offer my remarks from the perspective of a small independent oil and natural gas exploration 

and production operator and on behalf of the Oklahoma Independent Petroleum Association (OIPA) which is an association of more than 1,600 independent oil and 

natural gas producers. 

Our company has 8 full time employees and a number of contract associates. I 

have a degree in Petroleum Engineering and I am responsible for all aspects of our 

field operations including drilling, completion and production operations. A significant and continuously increasing part of this responsibility includes making sure 

our company is compliant with numerous Federal environmental requirements 

under the Clean Water Act, the Safe Drinking Water Act, the Clean Air Act, SARA 

Title III, Federal Emergency Management Agency, U.S. Fish and Wildlife Service, 

Historic Preservation, Bureau of Land Management, and a variety of state requirements. 

Prior to addressing our concerns with the Spill Prevention Control and Countermeasure (SPCC) rule, I would like to describe the crude oil and natural gas exploration and production in Oklahoma and the nature of OIPA’s membership. Oklahoma is a mature energy producing state. A significant aspect of that production 

particularly in the context of the effects of regulations involves the critical role of 

‘‘marginal’’ wells. The Interstate Oil and Gas Compact Commission, defines a marginal oil well as producing 10 barrels or less per day of crude oil and 60 million 

cubic feet (mcf) or less of gas per day. Oklahoma ranks 2nd in the production of 

crude oil and natural gas from marginal wells. Over half of Oklahoma’s oil production comes from marginal wells which accounts for approximately 41.4 million barrels of crude oil per year from approximately 48,000 marginal wells. 

Although our membership includes some publicly traded companies, the majority 

of our members are small, family owned businesses similar to small family farms. 

Our members explore for and produce crude oil and natural gas. In contrast to the 

large integrated companies, our members do not refine crude oil and we do not market gasoline or heating fuels. 

Now to address the SPCC rule, the Environmental Protection Agency (EPA) proposed revisions to the SPCC rule in 1991, 1993, and 1997. A new SPCC rule was 

finalized and became effective August 16, 2002. Prior to and since 2002, OIPA has 

raised significant concerns regarding the adverse impacts of these regulations on oil 

and natural gas production in Oklahoma. On December 2, 2005, EPA proposed another rule to clarify some issues raised with the 2002 rule as well as a guidance 

document for its inspectors. Unfortunately, none of our issues are addressed in the 

proposed rule and the guidance document leaves too much to regional inspectors to 

interpret. 

The intent of the SPCC regulation is to prevent the release of oil into the waters 

of the United States. The EPA’s broad interpretation of the definition of ‘‘waters of 

the United States’’ that include things such as dry arroyos, drainage ditches, road 

bar ditches is unreasonable. Smaller independent operators often do not have the 

time or the resources to prove they are not subject to the SPCC rules. This ambiguity has lead operators to develop costly plans and procedures when they may not 

be necessary. The various court decisions have complicated this issue as well. The 

guidance document does not provide any clarity on what is ‘‘waters of the United 

States.’’ 

The SPCC’s current ‘‘one size fits all’’ requirements do not take into consideration 

the risk of marginal crude oil and natural gas wells as compared to larger bulk storage facilities and refineries that have high throughput and large single tank storage 

volumes. 

As previously stated, the intent of the SPCC rule is to prevent and control oil discharges, not produced water discharges. The EPA has not presented data demonstrating there is a significant history of documented spills of oil into ‘‘waters of 

the United States.’’ from produced water storage tanks. Oil and gas exploration and 

production equipment used to treat produced water should be subject to the wastewater exemption to the same extent as similar facilities in other industrial sectors. 

At non-exploration and production sites, process equipment is excluded from the 

definition of bulk storage containers, whereas at E&P facilities, this type of equipment is considered bulk storage containers and subject to secondary containment requirements. The EPA has singled out E&P oil and gas water separation facilities 

for an increased level of regulation while facilities in other industry sectors using 

similar or nearly identical technologies and treatment goals are allowed to be exempted from these rules. 

The requirements for containment around flow lines and gathering lines are unrealistic and impractical. Installing secondary containment or retrofitting all existing 

flow lines and gathering lines (such as double-walled piping) is cost prohibitive. A 
52 

more reasonable approach would be to allow operators to implement flexible and responsible, risk-based flow line inspection and maintenance programs, not prescriptive corrosion, integrity or pressure testing which can be extremely costly for small 

operators. 

Design, construction and maintenance of secondary containment around oil tanks 

are the most beneficial ways to prevent spills. Even though EPA has recently proposed to streamline the process for smaller facilities in its recent proposal, the proposed threshold does not address marginal crude oil wells. 

The 2002 SPCC rule includes numerous administrative changes that, taken as a 

whole, greatly expands and increases the impact of the rules on the regulated community. These changes include a new definition for a facility, requiring a plan prior 

to beginning any operations at an E&P site and changing the terminology from 

‘‘shoulds and shalls’’ to ‘‘musts or implied musts’’. All these changes take away the 

flexibility that a Professional Engineer and/or an operator should have to address 

the various site specific conditions. We are disappointed to see that our issues with 

the 2002 regulation were not directly addressed in the recently announced proposed 

rule. 

We have never seen a cost and energy impact analysis of the 2002 regulations 

or data that supports the needs for changes provided in the 2002 SPCC rule affecting the E&P sector. We are aware that the Department of Energy has recently initiated a cost impact study and believe that the results will be very beneficial. At a 

time when domestic oil and natural gas production is being challenged to meet critical domestic demand, understanding these consequences will be essential to rulemaking decisions. 

Finally, the EPA should clarify how it plans to address the API litigation settlement agreement issues as it relates to the 2002 SPCC rule. EPA should follow 

through and make rule changes to clarify these issues. And while the API settlement agreement appears to address containment at crude oil loading areas, recent 

site inspection violations in Oklahoma show EPA inspectors taking a different approach. 

On December 2, 2005, EPA Administrator Stephen L. Johnson signed a proposed 

amendment to extend the SPCC compliance deadline for all facilities. OIPA supports 

the EPA’s proposed extension as we believe it will give us time to work with EPA 

to resolve our ongoing issues. We believe it is logical and appropriate to extend the 

compliance deadline to account for future rulemakings that could result in changes 

that would make expenditures under the 2002 regulations costly and unnecessary. 

We urge the EPA to develop a regulatory approach that is appropriate for our industry. This approach would include a clear, concise and reasonable definition of 

‘‘waters of the United States.’’ for the E&P industry and focus on those facilities 

that reasonably can be expected to impact those waters, include a benefit/cost analysis of the requirements being considered and implemented, address the ‘‘real’’ environmental risks of domestic exploration and production of oil and natural gas sites 

and focus on those areas where past experience has demonstrated a true need for 

regulation, and provide a practical and economic regulatory scheme that small operators can understand. Such an approach would encourage marginal well crude oil 

and natural gas operators to comply, assure that industry’s funds are spent where 

it can provide the most benefit, and maintain viability domestic production supplies. 

I appreciate the opportunity to submit this testimony on OIPA’s and our behalf. 

RESPONSES BY BRENT CUMMINGS TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. How much oil is produced in the state of Oklahoma and of that oil, 

what percentage of it has actually been spilled? 

Response. The Oklahoma Corporation Commission tracks the amount of oil and 

condensate produced on a yearly basis. The total oil and condensate production in 

Oklahoma for the following calendar years is: 

Calendar Year 2000 - 69,018,135 barrels 

Calendar Year 2001 - 68,725,026 barrels 

Calendar Year 2002 - 66,030,455 barrels 

Operators are required to report oil spills that reach waters of the United States 

to the National Response Center (NRC). The NRC’s data was evaluated to determine the amount of spills that have occurred at production sites (excluding spills 

that were associated with downstream activities such as gathering, transmission 

and refining). Using the National Response Center data for Oklahoma, the percentage of crude oil and condensate spilled that reached waters of the United States 

during 2000 to 2002 in comparison to the amount of crude oil produced is as follows: 
53 

Calendar Year 2000—843 barrels - .00122 percent 

Calendar Year 2001—891 barrels - .00130 percent 

Calendar Year 2002—830 barrels - .00126 percent 

This clearly shows that spills from production sites to waters of the United States 

present a low risk to the environment, there is no need for more onerous SPCC requirements at crude oil production sites, and that reduced requirements for these 

sites are warranted. 

Question 2. In EPA’s 1996 report entitled ‘‘Analysis of the Relationship between 

Facility Characteristics and Oil Spill Risk’’, it states that ‘‘the overwhelming majority of facilities in both the farm and institutional industry sectors are small, storing 

less than 10,000 gallons of oil. Most facilities in the facilities in the production industry sector store between 10,000 and 50,000 gallons of oil’’ EPA seems to imply 

that these production facilities are not ‘‘small’’ businesses when in fact these are the 

small businesses of the oil production industry and should be afforded the same 

flexibility given to other small businesses in the December 2005 rule. Do you agree? 

Response. Yes, Cummings Oil Company employs 8 full time employees. Our company certainly is a small business and typically we have storage capacity approaching 42,000 gallons of crude oil at our production sites. 

Question 3. Further, EPA’s 1995 data and Dr. Corbett’s testimony state that there 

are small oil production facilities that fall below the 1,320 gallon threshold that triggers the SPCC requirements. Are you aware of any such facilities? 

Response. No. It would be extremely rare to find an oil production facility in Oklahoma that would have less than 1,320 gallons (i.e. approximately 31 barrels) of total 

oil storage. Production facilities in Oklahoma where crude oil is produced typically 

have at least two oil storage tanks (one to produce in and one where oil is stored 

in preparation for sale to the purchaser). The purchaser’s transport load size is approximately 180 barrels. This combined with the producing capability of the well explains why the typical oil storage tank has a nominal capacity of 300 barrels or 210 

barrels. There is a volume below the load level in a tank for heavy impurities to 

settle, and it is not practical to attempt to fill tanks to the top. However, the shell 

capacities of all oil containers are required by EPA to be included in the total facility storage volume. Additionally, there is often a produced water tank of similar size 

to the oil storage tanks, separation equipment, flow lines and piping at the facility 

that have to be included in the total facility storage volume (minus those containers 

that hold less than 55 gallons). 

RESPONSES BY BRET CUMMINGS TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. Mr. Cummings, in your testimony, you mention that you are concerned that EPA inspectors may not be taking actions consistent with the recent 

settlement agreement. Have you reviewed the EPA guidance for regional inspectors, 

issues on December 2, and do you believe such guidance is or is not adequate to 

resolve your concerns? 

Response. We have reviewed the guidance document and found that it merely follows the 2002 SPCC rule. It provides no clarification on issues such as waters of 

the United States, produced water tanks, containment around flow lines, delayed 

implementation of SPCC plans at new oil production facilities, etc. We do not believe that our issues associated with production operations were addressed in the 

guidance document or the recently proposed rule. 

The guidance document is not an ‘‘enforcement’’ document and an EPA inspector 

has the discretion to use the document or not. We do not believe a guidance document should be used to explain SPCC requirements in lieu of a rulemaking. For example, the API settlement agreement issues should be clarified in a rule. 

Question 2. What is the total amount of petroleum products located within the 

boundaries of an average ‘‘marginal well’’ site? 

Response. Produced crude oil is the petroleum product located at a marginal well 

site that typically meets the threshold requirement for SPCC plans. It is important 

to note that by nature oil well production rates decline over time. Many wells ultimately become marginally productive. However, the production and storage equipment is sized to meet the initial production capability of the well. Typically, it is 

not practical or economical to resize equipment. Additionally, although a well’s production rate may currently be only a few barrels per day, there is need for larger 

storage capacity to accumulate enough oil to make it economical for an oil purchaser 

to transport. 

Marginal production sites in Oklahoma where crude oil is produced commonly 

have at least two oil storage tanks (one to produce in and one where oil is stored 
54 

in preparation for sale to the purchaser). The purchaser’s transport load size is approximately 180 barrels. This combined with the initial producing capability of the 

well explains why the typical oil storage tank has a nominal capacity of 300 barrels 

or 210 barrels. There is a volume below the load level in a tank for heavy impurities 

to settle, and it is not practical to attempt to fill them all the way to the top. However, the EPA requires the shell capacities of all oil containers are to be included 

in the total facility storage volume. Additionally, there is often a produced water 

tank of similar size to an oil storage tank, separation equipment, flow lines and piping at the facility (minus those containers that are less than 55 gallons). Depending 

on site characteristics, the total facility volume of petroleum hydrocarbons on a facility can be from 800 to 1000 barrels. It is important to note that this is not a single 

tank or piece of equipment that stores this volume of oil as compared to crude oil 

storage tank farms or refineries. The risk of is extremely low for all tanks and 

equipment at a typical oil production facility to fail at the same time. Although, we 

feel the requirements for most production sites are overly stringent. These types of 

facilities certainly warrant less stringent requirements and a more streamlined 

SPCC process. 

STATEMENT OF JAMES COYNE, PRESIDENT, NATIONAL AIR TRANSPORTATION

ASSOCIATION

Chairman Inhofe, Senator Jeffords, and Members of the Committee: 

Thank you for this opportunity to appear before you today to discuss the Environmental Protection Agency’s recently released revisions to the Spill Prevention, Control and Countermeasure (SPCC) rule. My name is James K. Coyne, and I am president of the National Air Transportation Association (NATA). I ask that my full 

statement be submitted for the record. 

NATA, the voice of aviation businesses, is the public policy group representing the 

interests of aviation businesses before the Congress, Federal agencies, and state 

governments. NATA’s 2,000 member companies, own, operate and service aircraft 

and provide for the needs of the traveling public by offering services and products 

to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, 

storage, rental, airline servicing, flight training, Part 135 on-demand air charter, 

fractional aircraft program management, and scheduled commuter operations in 

smaller aircraft. NATA members are a vital link in the aviation industry providing 

services to the general public, airlines, general aviation, and the military. 

As you are well aware, over the past few years, a number of aviation-fuel providers have been notified by the U.S. Environmental Protection Agency that their 

fuel trucks are subject to regulation requiring so-called ‘‘secondary containment’’ 

while the trucks are parked. The EPA contends that these trucks are mobile or portable storage facilities subject to existing regulations that have been covered since 

the rules’ inception in the early 1970s. Earlier this month, the EPA finally issued 

two Notices of Proposed Rulemaking (NPRMs) on revisions to the SPCC rule, which 

governs secondary containment. The new deadline for implementation of these regulations has been extended to October 31, 2007. 

The NPRMs put forth by the EPA present a much better solution than those proposed earlier by the Agency, although the rules contain some contradictions and still 

leave many questions unanswered. Most notably, the proposed amendments do 

away with the requirements of ‘‘sized secondary containment’’ for mobile refuelers, 

which posed the largest challenges to the industry. Refueling vehicles will no longer 

be required to build costly containment areas to hold the trucks when they are not 

in service. Vehicles are still subject to ‘‘general containment’’ provisions, which are 

far more reasonable. 

The EPA’s new proposals still, however, leave some lingering questions regarding 

the SPCC requirements. The NPRMs do not specifically state whether the extension 

for compliance to October 2007 applies to aviation industry regulations as the industry asserts. Second, general containment is loosely defined in the documents, which 

gives more discretion to individual EPA inspectors responsible for auditing airport 

environmental operations. Additionally, other non-aviation vehicles and equipment 

subject to SPCC requirements are given exemptions due to their excellent history 

of handling fuel spills, while the aviation industry, which has a comparable if not 

better record, isn’t provided these exemptions. Overall, NATA is supportive of the 

efforts made by the EPA to mitigate the impact the SPCC rules could have on the 

aviation industry, and looks forward to working with the Agency to further clarify 

some key issues that currently remain unresolved. 
55 

HISTORY

Regulations providing for secondary containment to prevent fuel spills have been 

in effect since 1974, with the passage of the Clean Water Act. In July 2002, the EPA 

issued proposed revisions to its oil spill prevention programs in a proposed rule 

known as the Spill Prevention, Control and Countermeasure (SPCC) rule. Included 

in the SPCC rule was a clarification in the definition of a mobile fuel truck used 

for refueling aircraft at an airport. The new rules classified mobile refueling vehicles 

as ‘‘mobile or portable storage containers’’ which would make them subject to SPCC 

regulations. 

There has been considerable debate as to whether this classification of a mobile 

fuel truck as a storage container is a new or existing regulation. The EPA contends 

that mobile refuelers in use at airports have always been classified as portable facilities and have thus been covered under the SPCC regulations since the original 

1974 rule. The EPA makes this claim despite the fact that the Agency has never 

taken any enforcement action against a mobile refueling truck until recently. The 

aviation industry asserts that the revisions to the SPCC rule in 2002 constituted 

a reinterpretation of existing regulations. Such a reinterpretation should be subject 

to a separate rulemaking process, with the appropriate opportunities for industry 

groups to comment on the proposed changes. To the EPA’s credit, the NPRMs released earlier this month provide the opportunity for all affected to comment on the 

proposed rule. 

Prior to the release of the SPCC NPRMs on December 2, the aviation industry 

was extremely concerned with the EPA’s lack of communication with officials at the 

Department of Transportation and Federal Aviation Administration regarding the 

matter. While the EPA and DOT operate under a series of agreements regarding 

jurisdiction over certain parts of the airport, the industry found it alarming that the 

two agencies were not relying on the expertise each other had in drafting rules that 

would not impede airport operations. While we have received word that the FAA 

was consulted very late in the rulemaking process, the industry feels that the FAA 

and EPA should have been working together from the beginning. 

To discuss the economic and logistical effects of the proposed SPCC rules, NATA 

teamed with other aviation industry stakeholders to bring a collective message to 

the EPA regarding the rule. A coalition comprising representatives from NATA, the 

Air Transport Association of America (ATA), the American Association of Airport 

Executives (AAAE), and the Airports Council International—North America (ACINA) was formed to advocate before the EPA and Congress the consequences of the 

SPCC rules. 

After several aviation-fuel providers were visited by their local EPA regional offices and threatened with fines for non-compliance of the SPCC rule (while negotiations with the EPA were ongoing), the aviation coalition began taking their message 

to Capitol Hill. To date, approximately a dozen U.S. Representatives and Senators 

have written the EPA questioning the necessity of requiring mobile refuelers to be 

parked in special secondary containment areas. Just last month, in legislation to 

fund the Department of Transportation for the 2006 fiscal year, Congress included 

language encouraging the EPA to work with the DOT ‘‘to establish reasonable methods of compliance for the [SPCC] requirements as they relate to on-airport mobile 

refuelers.’’ 

ARE FUEL SPILLS A SIGNIFICANT PROBLEM?

Mobile refuelers in use at airports currently adhere to a strict inspection regimen 

designed to ensure the integrity of the fuel tanks to prevent them from leaking or 

spilling fuel onto the ground. The design and construction of all mobile refuelers follow DOT guidelines and are tested to certify compliance with environmental emissions standards. Moreover, virtually all mobile refueling vehicles are equipped with 

a number of safety devices to prevent fuel spills and leaks, and also to minimize 

the risk of fire. Airport refuelers are equipped with systems including emergency 

cut-off switches, interlock systems to prevent movement of the vehicle without the 

proper stowage of equipment and over-fill prevention valves. Refueling vehicles also 

contain protections such as ‘‘dead-man’’ switches, over-pressure cut-off valves and 

the capability to isolate individual system components. 

In addition to the numerous safety precautions and redundancies in use on a mobile refueler, there is also a strong economic incentive for operators to conserve as 

much fuel as possible. Fuel is the most profitable and sometimes only commodity 

for an airport business, and it makes no sense for a fuel provider to not care about 

protecting fuel from leaks and spills. With the price of jet fuel having increased dramatically in recent years, it makes even more sense that the provider make sure 
56 

that every gallon of fuel he or she has purchased makes it into the aircraft rather 

than spilled onto the airport tarmac. 

Over the last few years, NATA has implemented a program encouraging ramp 

safety for its member companies. The program, known as NATA Safety 1st, encourages standardized training and procedures for line service personnel employed on 

airport operating areas. The objective of the program is to teach personnel proper 

and safe procedures for ground servicing and refueling, towing and handling of general aviation aircraft and helicopters. Employees are trained to have a professional 

‘‘safety first’’ attitude. The program has been an overwhelming success, with more 

than 8,000 line service technicians of NATA companies attending seminars and participating in safety training. 

The aviation industry as a whole has also worked together to guard against fuel 

spills. The Air Transport Association has specifications regarding quality control for 

fuel handling, titled ‘‘Spec. 103: Standards for Jet Fuel Quality Control at Airports,’’ 

that are required of any airport in the United States seeking to sell aviation fuel. 

Fuel distributors are required to include the specification as part of their handling 

manual. The specifications call for daily inspection of the mobile refueler for problems including cracks, leaks, or any other damage. Every aspect of the refueling vehicle is covered, including tires, hoses, fire prevention equipment, and brakes. It is 

mandated that a mobile refueler undergo this rigorous inspection each day before 

coming into contact with any aircraft. 

The FAA released an Advisory Circular in 2004 accepting a number of industry 

publications as a means of complying with FAA regulations pertaining to fire safety 

in the safe storage, handling, and dispensing of fuels used in aircraft. A copy of the 

AC is attached to my testimony. The FAA included publications from the National 

Fire Prevention Association (NFPA), the American Petroleum Institute (API), and 

NATA. NATA’s ‘‘Refueling and Quality Control Procedures for Airport Service and 

Support Operations’’ is listed as an acceptable means of compliance with FAA regulations. A copy of the publication is attached to my testimony as well. 

While it is clear that airport refuelers take extraordinary steps to minimize the 

potential for damage caused by fuel spills, the EPA continues to believe that these 

trucks are highly susceptible to fuel spills and leakage, even when not in use. We 

contend that the EPA is proposing a solution to a problem that does not exist. 

Across the entire aviation industry, we do not have one documented case of a fuel 

truck spontaneously rupturing or spilling fuel while the truck is not in service, 

which is what many of the SPCC provisions guard against. In the rule and accompanying guidance released this month, the EPA contends again that they have documented cases of aviation fuel trucks spilling. However, the Agency has failed to 

share these cases with the industry at any time during our discussions on the rule. 

I think it would make for much better public policy if the EPA were to share their 

documented cases with the industry so we can review the cases and amend industry 

standards, if necessary. We have always welcomed the opportunity to work with the 

EPA to review the causes of such spills and to come together to reach solutions to 

help prevent similar incidents in the future. 

TRADITIONAL COMPLIANCE WITH SPCC REGULATIONS

An SPCC plan is a written site-specific spill prevention plan that details a facility’s operating procedures to prevent spills, control measures to prevent spills from 

reaching navigable waters, and countermeasures to contain, cleanup, and mitigate 

the effects of an oil spill that reaches navigable waters. The key elements of an 

SPCC plan include an identification of the source of possible spills, an identification 

of strategies to preclude fuel spillage, the installation of methods of spill containment and product recovery, and the audition and review of programs to determine 

that spill prevention programs are effective. 

SPCC plans are necessary for owners or operators of a non-transportation-related 

fixed facility that could reasonably be expected to discharge oil into or upon the navigable waters of the United States or adjoining shorelines. SPCC regulations also 

apply to facilities that have an aboveground storage capacity of more than 660 gallons in a single container, have an aboveground storage capacity of more than 1,320 

gallons, or have a total underground buried storage capacity of more than 42,000 

gallons. Some facilities may not fall under regulations if, due to their location, they 

are not reasonably expected to discharge oil into navigable waters. 

An aviation business’ SPCC plan must meet a number of criteria. The plan must 

have full management approval, be kept onsite, and be reviewed and certified by 

a Professional Engineer (PE) who has examined the facility. The plan must address 

both spill history and spill prediction, i.e. the direction of flow. SPCC plans must 
57 

be reviewed by management every three years and be revised within six months 

(and recertified by a PE) if the facility is modified. 

Specifically, an SPCC plan must contain measures to prevent fuel spills, including 

drainage control, bulk storage tanks, facility transfer operations, and spill control 

equipment. A facility layout and surface drainage diagram must also be included in 

the plan. 

THE EPA’S NEW REVISIONS TO THE SPCC RULE

The new NPRMs released by the EPA in early December represent a major 

change from earlier EPA policy regarding mobile refuelers and other vehicles operating on airport runways. The removal of the requirement of ‘‘sized secondary containment’’ is a great step in the right direction and demonstrates the EPA’s willingness to listen to the industry regarding the impracticability of certain EPA regulations. With the current comment period still open, NATA hopes to further work with 

the EPA to discuss some of the outstanding issues and questions we have concerning the new rules and how to best resolve them in both a sensible and environmentally sound manner. 

The NPRMs address several aspects of airport operations, and a summary of some 

of the provisions and how they relate to aviation businesses is listed below: 

Mobile Refuelers 

The EPA defines airport mobile refuelers as vehicles found at airports that have 

onboard bulk storage containers designed for or used to store and transport fuel for 

transfer into or from an aircraft or ground service equipment. The troublesome provisions for refuelers prior to this month’s NPRMs read as follows: 

§112.8(c)(2): Construct all bulk storage container installations so that you 

provide a secondary means of containment for the entire capacity of the 

largest single container and sufficient freeboard to contain precipitation. 

You must ensure that diked areas are sufficiently impervious to contained 

discharged oil. Dikes, containment curbs and pits are commonly employed 

for this purpose. You may also use an alternative system consisting of a 

drainage trench enclosure that must be arranged so that any discharge will 

terminate and be safely confined in a facility catchment basin or holding 

pond. 

§112.8(11): Position or locate mobile or portable oil storage containers to 

prevent a discharge as described in §112.1(b). You must furnish a secondary 

means of containment, such as a dike or catchment basin, sufficient to contain the capacity of the largest single compartment or container with sufficient freeboard to contain precipitation. 

The new EPA proposal effectively exempts airport mobile refuelers from both of 

the above provisions. These provisions were the most contentious in our discussions 

with the EPA, as they would have cost tens of thousands of dollars for airport businesses and required fuel providers to construct specialized areas of the airports to 

park the fuel trucks when they were not in service. Such areas would have reduced 

the already constrained space on the airport operating area (AOA) and many airports have no space at all in which to construct these facilities. Furthermore, the 

increased traffic of having fuel trucks driving back and forth to these areas increased the likelihood of safety incidents during daily airport operations. Also, having trucks loaded with fuel parked in relative proximity to each other would provide 

an inviting target for terrorists seeking to cripple the aviation system in the United 

States. 

The NPRM took these concerns into account and did away with the sized secondary containment requirements that caused so much alarm in the industry. We 

are very appreciative of the EPA’s efforts to listen to and address the industry’s concerns on this important matter. 

Although the requirements of sized secondary containment have been eliminated, 

the NPRMs do not exclude mobile refuelers from general containment requirements 

listed in §112.7(c) and §112.8(c) of the SPCC rule as they relate to bulk storage and 

transfers to the vehicles. General secondary containment requirements include, as 

noted in §112.7(c), ‘‘Provide appropriate containment and/or diversionary structures 

or equipment to prevent a discharge’’ The rule states that ‘‘at a minimum, you must 

use one of the following prevention systems or its equivalent dikes, berms, or retaining walls sufficiently impervious to contain oil; curbing, culverting, gutters, or other 

drainage systems; weirs, booms or other barriers (such as drain plugs); spill diversion ponds; retention ponds; or sorbent materials.’’ Other general provisions in the 

regulation require integrity testing of aboveground storage tanks, and training and 

response plans in the event of an oil discharge. 
58 

As you can see, the SPCC regulations offer a number of options for mobile refuelers to comply without resorting to the sized containment area. Many refuelers 

already use some of the prevention systems described in the regulation. The revisions proposed in the NPRMs are far more reasonable than those originally proposed by the EPA in 2002. 

While the requirements of ‘‘general secondary containment’’ do provide a variety 

of ways to comply, the broadness of the provision also leaves many unanswered 

questions. We support the flexibility in having so many different compliance mechanisms, but are eager to hear more from the EPA on how the Agency will enforce 

these regulations. The guidance for EPA regional inspectors issued by the Agency 

to accompany the NPRMs is vague and leaves many of the terms undefined. We 

have concerns that without more structured guidance for EPA inspectors, the inspectors will have more autonomy to enforce the regulations at their will. We have 

already dealt with problems where EPA regulations are enforced differently depending upon in which region an airport is located and, without more defined guidance 

to EPA inspectors, we expect this practice to continue. 

Small Facilities 

One of the chief concerns regarding the SPCC regulations was their disproportionate detrimental effect on smaller businesses and smaller airports. These businesses were ill equipped to comply with some of the costlier provisions of the SPCC 

rule. The Small Businesses Administration (SBA) Office of Advocacy has remained 

a loyal advocate for the small businesses affected by this rule, especially those in 

the aviation industry. We commend the SBA Office of Advocacy for its tireless support of NATA businesses during this process. 

After listening to the SBA and other representatives of small businesses, the EPA 

has now issued proposals that seek to offer relief for smaller facilities that are under 

the jurisdiction of the SPCC rule. The new proposal allows a ‘‘qualified facility’’ to 

self-certify its SPCC plan in lieu of certification by a Professional Engineer (PE). A 

‘‘qualified facility’’ is a facility subject to the SPCC requirements that (1) has a maximum total facility oil storage capacity of 10,000 gallons or less; and (2) has had 

no reportable oil discharge as described in §112.1(b) of the SPCC rule during the 

10 years prior to self-certification. If the facility has been in operation for less than 

ten years, then it must have had no reportable oil discharge during its entire tenure. 

The EPA states that in addition to the smaller fuel storage capacity, a discharge 

history is a ‘‘reasonable indicator of a facility owner’s or operator’s ability to develop 

an SPCC plan for the facility without the involvement of a PE.’’ 

This provision will save small facilities thousands of dollars in consultant fees and 

certification costs by allowing them to avoid the use of a PE. Such a proposal is reasonable and alleviates many of the concerns held by smaller airports and aviation 

businesses prior to the release of the NPRM. However, the facilities are offered no 

exceptions to any SPCC regulations if they decide to use this option. Facilities selfcertifying themselves cannot claim exemption from SPCC rules for impracticability 

reasons or any other factor. 

Oil-Filled Equipment 

The EPA defines oil-filled equipment as ‘‘equipment which includes an oil storage 

container (or multiple containers) in which the oil is present solely to support the 

function of the apparatus or the device. Oil-filled operational equipment is not considered a bulk storage container, and does not include oil-filled manufacturing 

equipment.’’ Examples of oil-filled operational equipment include, but are not limited to, hydraulic systems, lubricating systems, gear boxes, machining cooling systems, heat transfer systems, transformers, circuit breakers, electrical switches, and 

other systems containing oil to enable the operation of the device. Mobile refuelers 

are not considered oil-filled equipment under the SPCC rule. 

The EPA’s proposal offers many exemptions to the SPCC rule for oil-filled equipment. The Agency states that the operators of such equipment, mainly used in utilities, have strong economic incentives to prevent power outages, to discover and respond to an outage, and to correct the conditions that produced the outages (an oil 

leak) as quickly as possible. In addition, the Agency stated that oil-filled operational 

equipment is often subject to routine maintenance and inspections to ensure proper 

operations, and is designed, constructed, and maintained according to specifications 

for its particular operation, and that construction materials are corrosion-resistant. 

The NPRMs provide several alternatives for owners of oil-filled equipment to comply with the SPCC regulations. Owners and operators of facilities where qualified 

oil-filled equipment is located have the alternative of preparing an oil spill contingency plan and a written commitment of manpower, equipment and materials, with-
59 

out having to determine that secondary containment is impracticable on an individual equipment basis. Additionally, owners and operators of facilities where qualified oil-filled equipment is located may establish and document an inspection or 

monitoring program for this equipment to detect equipment failure and/or discharge 

in lieu of providing secondary containment for qualified oil-filled operational equipment. The proposal also eliminates the current requirement for individual impracticability determinations for oil-filled equipment at a facility that has had no reportable discharges during the 10 years prior to the plan certification date or since becoming subject to the SPCC requirements if the facility has been in operation for 

less than 10 years. 

These changes to the original SPCC proposals again represent a reasonable approach by the EPA to provide methods of compliance that do not place an undue 

burden on the industry, yet provide sensible, environmentally sound procedures. All 

airports use some oil-filled equipment in some capacity, and these revisions alleviate 

many concerns among those in the industry. 

Motive Power 

Certain motive power containers are exempted from the SPCC rule as well. Motive power containers are defined as onboard bulk storage containers used solely to 

power the movement of a motor vehicle (i.e. fuel tanks), or ancillary onboard oilfilled operational equipment (i.e. hydraulics and lubrication systems) used solely to 

facilitate its operation. This exemption from the SPCC regulations does not apply 

to a bulk storage container mounted on a vehicle for any purpose other than 

powering the vehicle itself (i.e. a tanker truck or mobile refueler). The EPA defines 

a ‘‘motive power container’’ as an integral part of the motor vehicle, providing fuel 

for propulsion or providing some other operational function, such as lubrication of 

moving parts or for operation of onboard hydraulic equipment. Examples of motive 

power vehicles include, but are not limited to, buses, recreational vehicles, some 

sport utility vehicles, construction vehicles, aircraft, farm equipment, and 

earthmoving equipment. Other airport equipment, including snowplows, deicing vehicles, and aircraft tugs are not addressed in the proposed amendments. 

While motive power is not addressed specifically in the SPCC regulation, some vehicle fuel containers may fall under the definition of a ‘‘bulk-storage container’’ in 

§112.2, while the onboard lubrication system may be considered oil-filled operational 

equipment. The EPA states that it recognizes that the requirements of the rule, especially specifically sized containment, are not practicable in most cases, and in fact 

the Agency never intended to regulate motive power containers. The EPA noted that 

although the equipment is exempt, oil transfer activities occurring within an SPCCcovered facility would continue to be regulated. The example provided by the EPA 

is when an airport mobile refueler transfers oil to a motive power tank, it is subject 

to the general secondary containment requirements because it does not occur across 

a loading/unloading rack. 

The aviation industry greets the exemption of motive power from the SPCC regulations with a sigh of relief. Earlier EPA statements offered up the possibility that 

all motive power, including large aircraft, would be subject to SPCC rules. This clarification and exemption of motive power is most helpful to the industry. 

Extension of Compliance Deadlines 

Originally, the amendments to the SPCC rule first published in 2002 had set 2006 

as the final deadline for SPCC compliance. Facilities subject to the rule would have 

to incorporate a plan developed by February 2006 and have the plan fully implemented by August 2006. The new NPRMs extend the deadlines for compliance until 

October 31, 2007. All affected facilities must have a plan certified and implemented 

by then. 

It is unclear, however, whether the extension applies to the aviation industry and 

to mobile refuelers specifically. In claiming that mobile refuelers have been subject 

to SPCC rules since the 1970s, the EPA is hinting that there will be no additional 

time for refuelers to comply and that EPA inspectors are free to immediately begin 

auditing airport operations. The aviation industry has long disputed the claim that 

mobile refuelers have always been covered, noting that the 2002 revisions constituted a reinterpretation of the definition of a mobile refueler. 

It is imperative that the EPA grant aviation businesses the opportunity to take 

the time to develop a comprehensive SPCC plan that takes into account the new 

guidance issued by the Agency. It takes a significant amount to time for airports 

to complete the certification process and then implement their plans. The EPA 

should absolutely cease any enforcement until airports have the opportunity to develop and implement an SPCC plan. 
60 

CONTRADICTIONS IN EPA POLICY

While the new SPCC rules on the surface seem reasonable, the NPRMs do contain 

a number of contradictions in EPA policy regarding mobile refuelers. For instance, 

the EPA offers exemptions to certain facilities from SPCC rules based on the facilities’ history of oil discharges, exempting those that have not had any spills in the 

last decade. While those facilities are offered exemptions, the aviation industry, 

which has an exemplary record of handling fuel spills, is not offered the same exemptions. Shouldn’t the EPA at least consider expanding the ‘‘history test’’ when examining the necessity for secondary containment regulations? 

Additionally, the EPA asserts that the utility industry’s oil-filled equipment is 

‘‘subject to routine maintenance and inspections to ensure proper operation, and is 

designed, constructed, and maintained according to specifications for its particular 

operation and construction materials are corrosion-resistant.’’ The Agency also 

states that the utilities have an ‘‘economic incentive’’ to prevent an oil spill. Here, 

the EPA fails to recognize that aviation businesses at airports have the same economic incentives and similar design, construction and maintenance stringencies regarding mobile refuelers. While NATA is encouraged by the EPA’s overall approach 

to the SPCC rule, these are questions we feel need to be asked of the EPA in regard 

to its policies on oil spills and prevention. 

CONCLUSION

After years of discussion with the EPA and appeals to Members of Congress and 

other Administration officials, we are pleased that the Agency has listened to our 

concerns and released a proposed rule that appears practical and thoughtful. Although several questions remain and the rule appears to offer contradictory reasoning for its policies, these NPRMs are much closer to the aviation industry’s goals 

than proposals of years past. We commend the EPA for taking our positions into 

account in drafting this rule. As the comment period moves forward and the Agency 

seeks comments on the proposed amendment, we will be happy to continue to address our thoughts and concerns with the EPA. We are hopeful that this rule will 

help reopen a dialogue between the industry and the EPA on how to reach the best 

possible policy. In the meantime, we hope that the Agency opts to include aviation 

facilities in the extension to 2007 offered by the rule. Such an extension will provide 

the appropriate opportunity for all affected airports to design, certify and implement 

an environmentally rigorous spill prevention plan. 

The aviation industry is committed to maintaining the environmental integrity of 

airports throughout the country. We recognize the sensitive environmental concerns 

that both the government and the public share regarding the role of the airport in 

the community. We feel that the best way to achieve a policy that benefits all stakeholders is to strengthen the government-business relationship. Such a relationship 

offers many opportunities for both parties to make our aviation system even better 

than it is today. 

I thank you for the opportunity to testify, and would be happy to answer any 

questions you may have. 

RESPONSES BY JAMES COYNE TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. In your statements during the hearing, you discussed the need for 

flexibility in airport management in moving mobile refuelers around a facility, the 

concern about having all such trucks go to a berm location. You also mention that 

the EPA suggested in their proposal that this is not workable. It seems that your 

issues regarding mobile refuelers should be resolved with the EPA proposal. Can 

you clarify? 

Response. The EPA proposal issued on December 2 of last year is a great step 

forward in the right direction. Removing the requirements of ‘‘sized secondary containment’’ for airport mobile refuelers was the largest point of contention between 

the aviation industry and the EPA. However, there are still some questions that remain with the EPA’s proposal. The NPRM does not specifically state whether the 

extension provided to qualified facilities until October 31, 2007, applies to the aviation industry. The industry asserts that such an extension should apply, noting that 

the original 2002 revisions to the SPCC program issued by the EPA constituted a 

reinterpretation of the definition of a mobile refueler. Allowing aviation fuel providers an extension until October 2007 will also result in more environmentally 

sound solutions to preventing oil spills, as facilities will have more time to budget 

properly and develop SPCC plans that focus on the long-term environmental health 

of the airport, rather than a short-term solution to meet an immediate deadline. 
61 

Additionally, while refuelers are exempted from ‘‘sized containment’’ requirements, they are still subject to ‘‘general containment,’’ which is far more reasonable, 

although the term is loosely defined. While NATA appreciates the flexibility offered 

by the loose definition of general containment, the association does have concerns 

that the vagueness of the term may give individual inspectors more power in deciding whether a facility has properly complied with the SPCC program. 

NATA would also like the EPA to consider applying exemptions provided to other 

equipment that share many of the same characteristics as mobile refuelers to the 

aviation industry’s mobile refuelers. For example, certain facilities are exempted 

from SPCC rules based on the facilities’ history of oil discharges. Those that have 

not had any spills in the 

last decade are exempted. The aviation industry, which has an exemplary record 

of handling spills, is not offered those same exemptions. Other equipment is exempted from SPCC rules due to the ‘‘economic incentive’’ of conserving fuel. Aviation fuel 

providers should be considered for a similar exemption, given the fact that fuel is 

a precious commodity and aviation businesses cannot afford to lose large amounts 

of fuel due to spillage. 

Question 2. Mr. Coyne, in your testimony, you seem to suggest that it would be 

appropriate for small facilities, which may or may not have any technical expertise 

on hand regarding oil spill containment, to make technical judgments regarding 

‘‘impracticability’’ or ‘‘environmental equivalence.’’ You heard the testimony stating 

that the self-certification option adds a significant liability to small business. Has 

NATA evaluated the liability impacts for small airports of the self-certification option as proposed and the self-certification option as you believe it should be drafted, 

and if so, what were the results? 

Response. To date, NATA has not conducted a study examining the liability impacts for small airports and operators that choose to self-certify. Prior to the publication of the NPRM in December 2005 governing the SPCC program, there was no 

indication from the Agency that self-certification for small facilities would be an option. 

NATA appreciates the flexibility offered by the EPA in allowing small airports 

and operators to self-certify their SPCC plans if they so choose, but encourages all 

the association’s members who qualify under the regulations to employ the services 

of a Professional Engineer (PE). Given the already high insurance rates faced by 

most airports and operators following the 9/11 attacks, the association is confident 

that most operators will use a PE to certify their facilities rather than incur the 

increased liability from self-certification. 

Question 3. In your testimony you reference letters of support sent by several 

members of Congress. Can you please provide the committee with copies of these 

letters? 

Response. Copies of the letters have been sent to the committee by both fax and 

e-mail. 

STATEMENT OF RICHARD OWEN, DIRECTOR, CHS, INC

Mr. Chairman, members of the committee, I am pleased to be here today representing the Agriculture Coalition on Spill Prevention Control and Countermeasure 

(SPCC). My name is Richard Owen, and I am a third-generation wheat farmer from 

central Montana. I farm 2200 acres of non-irrigated wheat, feed barley, malt barley, 

waxy barley and safflower in rotation. I also serve as a director for CHS, the country’s largest farmer-owned cooperative, which is headquartered in St. Paul, Minnesota, and includes over 325,000 farmer owners. 

The Agriculture Coalition, which includes organizations representing farmers, cooperatives, and related businesses, welcomes the Environmental Protection Agency’s 

(EPA) continued efforts to address the concerns of agriculture as part of its December 2005, proposed rulemaking. However, we continue to have concerns with both 

EPA’s existing regulations as well as this latest proposal. 

In reviewing the history, we do not believe that the original EPA regulations, 

which became effective in 1974, were ever intended to apply to farms and ranches. 

Many farmers and ranchers in fact only became aware of such requirements when 

EPA issued its amended regulations in 2002. 

Under EPA’s existing 2002 regulations, any facility, including farms and ranches, 

as well as farmer cooperatives other agribusinesses, with aggregate storage of 1,320 

gallons of oil (which is defined as oil of any kind) is required to: 

(A) Have an amended oil spill prevention plan, certified by a professional 

engineer, by February 17, 2006; and 
62 

(B) Implement that plan by August 18, 2006. This includes: (1) develop an 

oil spill plan, and have it certified by professional engineer, (2) build secondary containment - such as berms or drain basins, (3) construct fences, 

(4) provide lighting, (5) employ monitoring devices, and (6) perform tank integrity testing and meet several other requirements. Imagine fencing whole 

farms or running wire to remote sites for monitoring across many miles to 

reach other small refueling sites. 

According to a recent USDA study, which I would like to submit for the record, 

such requirements would impact nearly 70 percent of all farms and many farmer 

cooperatives and other agribusinesses. For farmers alone, the cost would be approximately $4.5 billion. For many farmers, the burden of such additional costs would 

be devastating. Moreover, such requirements are extremely impractical in many 

cases given the unique characteristics of farming in general. This is especially true 

for farms which are made up of multiple parcels and include lands that are noncontiguous and nonadjacent, and where you may have several tank sites. As part 

of its study, USDA found that 47 percent of the farms that responded in the survey 

have multiple sites, on average 6, which are located an average of 4.1 miles, not 

feet or yards, away from the main fueling sites. In addition, many agricultural fuel 

tanks do not stay full year-round as do industrial tanks for which this rule was 

originally designed. For example, fuel tanks for irrigation pumps stand empty many 

months of the year and during pumping operations are constantly being drawn 

down. 

Finally, the same USDA study also found there is little justification for such requirements in view of the fact that agriculture has a spill history of less than 1 percent. 

In my case, these regulations would also apply to me since the storage on my farm 

consists of 3,000 gallons of diesel fuel and 1,200 gallons of gasoline, which triggers 

EPA’s current aggregate threshold of 1,320 gallons. 

Given this history, the potentially huge cost, the difficulty with compliance due 

to the nature of agriculture and farming, and the lack of data to indicate there is 

a problem, we continue to believe a strong case can be made that farmers and 

ranchers should be exempt from such requirements. That said we have been working with the EPA in good faith for the past 3 years in support of a more workable 

and realistic approach to address the concerns of agriculture under the 2002 rule. 

Specifically, we have recommended a separate definition for farms and ranches relating to the term ‘‘facility’’ be established - one that reflects their unique characteristics. A farm or ranch, including those comprised of multiple parcels and/or noncontiguous or nonadjacent lands, should not be considered a single facility under the 

regulations. Each field or parcel where tanks are located should be considered separately and not simply combined and aggregated. 

We have also suggested to EPA a tiered approach to compliance, based on whether the amount of oil storage on a site specific basis exceeds a threshold trigger. Applying a single, inflexible concept of an ‘‘aggregated facility total’’ to trigger compliance may make sense for a large terminal, but it makes no sense in the case of a 

farm or ranch that may have multiple fueling sites spread out across several miles. 

We have also urged EPA to further delay implementation of its SPCC regulation 

given the fact that it would be impossible in most cases for farmers to meet the existing February and August 2006 deadlines for compliance. 

As part of its December 2005, proposal, EPA has announced an indefinite extension for compliance with its 2002 regulations for all farms with an aggregate storage 

capacity of 10,000 gallons or less until more information can be collected and analyzed to determine if differentiated SPCC requirements may be appropriate. For 

farms and ranches with aggregate oil storage over 10,000 gallons, EPA has proposed 

that the compliance dates be extended to October 31, 2007. 

While the 10,000 gallon trigger is a significant improvement over the current 

1,320 gallon trigger, we are concerned that farms would still be subject to compliance based on the establishment of an ‘‘aggregate’’ trigger for the entire farm rather 

than on a site by site basis. In addition, given the huge cost as well as impracticality of its SPCC regulations in many cases, we believe EPA should exclude all 

farms from its requirements pending further review and that it adopt a more flexible and workable approach that fully addresses the concerns of agriculture as we 

have outlined. 

In addition, we continue to be concerned over the potential impact and cost of 

such regulations on many farmer cooperatives and other agribusinesses that serve 

farmers. 

Again, on behalf of the Agriculture Coalition, we appreciate the opportunity to 

testify before the committee on this important and costly issue. We look forward to 
63 

working with you as well as EPA to address the concerns of agriculture, while continuing to meet important environmental objectives. 

Thank you. 

RESPONSES BY RICHARD G. OWEN TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. USDA conducted a survey of farmers on the SPCC rule. Can you explain to the Committee, based on the USDA’s information, how many farmers are 

impacted by the SPCC rule and how many farms have spilled a reportable quantity 

of oil? 

Response. USDA’s 2005 study, entitled ‘‘Fuel/Oil Storage and Delivery for Farmers and Cooperatives,’’ indicated that over 70 percent of all farms surveyed and 

many farmer cooperatives and other agribusinesses will be impacted by the current 

SPCC rule. Based on the survey results, USDA estimated that 487,343 farms nationwide would be impacted at a total cost of $4.5 billion based on an average cost 

of $9,215. While this by itself represents a huge cost, the Agriculture Coalition believes this may be conservative. 

The USDA study found little justification for these SPCC requirements in view 

of the fact that agriculture has a spill history of less than 1 percent. 

Question 2. According to EPA’s 1995 survey data, farms have on average less than 

10,000 gallons of throughput volume. EPA further estimates that for facilities with 

approximately 10,000 gallons throughput, 0.03 gallons of oil spill. EPA’s data also 

found that the average quantity of oil discharged from a farm (a total of 50 incidents) was just over 1,000 gallons with all but 7 gallons being contained within secondary containment. The discharges mostly reached land and soil, not navigable waters. 

Further, in his analysis of EPA’s data, Dr. Corbett argues that ‘‘—the total petroleum usage by the agriculture sector indicates that farms store, transfer, and use 

about the same quantity oil products as the Nation’s commercial sector, or about 

half as much oil as the electric power industry.’’ However, his own charts show that 

in fact while oil production and farms make up the greatest percent of SPCC regulated facilities, they actually have fewer spills when one compares their percent of 

SPCC related oil spills to the number of SPCC related facilities. Farms, according 

to his chart, make up about 37 percent of the regulated community and have about 

10 percent of its spills. Whereas most other industries have a greater percent of 

SPCC spills than they do SPCC facilities. For instance, manufacturing has nearly 

45 percent of the spills but only 5 percent of the facilities. 

Based on this data, do you think EPA should extend any flexibility it offers in 

the December 2005 rule to all farms? 

Response. Yes. While the 10,000 gallon threshold proposed by EPA in their December 12, 2005 proposal is a significant improvement over the current 1,320 gallons, this tankage threshold number is not necessarily applicable to farms. While 

the Agriculture Coalition on SPCC supports EPA increasing the threshold in the 

proposed rule, we have concerns with the 10,000 gallon trigger because it was established only to remain consistent with those in other EPA regulations related to oil 

discharges, like the National Oil and Hazardous Substances Pollution Contingency 

Plan (National Contingency Plan or NCP) and does address the typical dispersion 

of storage tanks in agriculture. 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 fuel dispersion characteristics and lack of any significant spill history, the agriculture industry cannot be compared to the spills of huge oil tankers. Before any rule is applied to our industry, EPA must evaluate the threat (if any) we present and establish rules applicable to the industry, which includes appropriate triggers. 

EPA’s 2005 Proposed Rule grants farms with 10,000 gallons or less of storage 

AND a spill plan, an indefinite extension of compliance deadlines. Farms with 

10,000 gallons or less with no plan and farms with more than 10,000 gallons of storage will not be afforded the indefinite compliance extension deadline. The relief provided by this indefinite extension is minimal as most farming facilities were unaware that the SPCC rule even applied to them. Also, the Coalition maintains that 

if EPA, in its own words, ‘‘believes that the unique characteristics of farms pose particular challenges to SPCC compliance and that further consideration of the requirements as they relate to farms is warranted,’’ that consideration and further investigation should be applied to all farms of any size. I am also disturbed that EPA’s 

1995 survey data upon which so much of the analyses are based is by its own admission in the proposed rule, very poor. 
64 

The more recent 2005 USDA study sharply contradicts EPA’s earlier analysis. 

Again, it also indicates there is less than a one percent spill history with regard 

to agriculture. In addition, a survey conducted by the Agricultural Retailers Association (ARA) in 2005 of agricultural retail dealers and distributors showed data similar to that collected by USDA. 

In addition, EPA’s 10,000 gallon trigger as applied to agriculture is based on an 

aggregate measure of all storage tanks and their capacity on a farm (which often 

include multiple parcels of land that are nonadjacent and noncontiguous, sometimes 

separated by roads, etc. and multiple tank locations at a significant distance from 

each other). Accordingly, any threshold trigger should be established on a site-bysite basis. 

RESPONSES BY RICHARD G. OWEN TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. The 1973 SPCC regulations were applied purely on a threshold basis 

any type of facility meeting the threshold for quantity of petroleum products on site 

was regulated. On what basis do you assert that the 1973 regulations were never 

intended to apply to farms? 

Response. Neither the 1973 EPA Regulation or the 1971 Memorandum of Understanding between the U.S. Department of Transportation (DOT) and EPA upon 

which the 1973 regulation followed, contains any specific reference to farm or farming operation. Nor do they include any reference to the term farmer or agricultural 

producer. There is no record as far we can determine of any action at that time to 

apply such regulations to farms. In fact, as USDA’s report indicated, the majority 

of farmers surveyed were unaware of such regulations. 

Question 2. Can you describe in more detail the type of storage on your property 

for example, do you hold fuels in one location? Are they located in separate tanks 

separated by large distances? For what purpose are you storing such significant 

quantities of fuel? 

Response. With regard to my farming operation, storage of fuel is in two different 

sites, the largest amount of fuel being 3000 gallons. It is uncommon that more than 

one or two thousand gallons are stored for a long period of time because of use soon 

after the tank is filled. The second set of two tanks is 100 feet away from the larger 

one and is currently used to store aviation gasoline. No more than 600 gallons are 

typically stored for a long period of time. The fuel tanks are all aboveground and 

in excellent condition with the area kept clean at all times. There has never been 

a spill. 

Significant quantities are stored when producers try to purchase fuel when prices 

are low. Some producers save as much as two or three thousand dollars at a time 

because they are capable of buying larger amounts at relatively lower prices. 

Question 3. What is your opinion of the mobile equipment exemptions included 

in the EPA’s proposed rule? 

Response. The Agriculture Coalition on SPCC fully supports the EPA’s proposal 

to exempt motive power and the proposal that these motive power containers do 

NOT count towards the aggregate facility capacity. We would fully support EPA extending a similar exemption to home heating oil storage located at a farm facilities 

main site, but which is used for the residential property at the site. 

Question 4. You did not speak at all in your testimony to environmental risk. Can 

you describe why fuel stored at agriculture sites would pose any less risk than fuel 

stored at another site? Are there protections inherent to farms that you believe reduce the risk to waters, which are often located adjacent to farms? 

Response. According to USDA’s analysis, there is very little environmental risk 

associated with agriculture. In fact, USDA’s survey of farmers indicates there is less 

than a 1 percent spill history in excess of 1,320 gallons. 

There are a number of factors that help contribute to agriculture’s low risk with 

regard to potential oil spills. Farmers have a strong vested interest in protection 

and prevention efforts, as well as environmental stewardship, because they (1) reside on the land and (2) they are dependent on the land for their current and future 

livelihood. They also can ill afford the cost and disruption of their farming operation 

as a result of any tank rupture or spill. Storage tanks are also subject to regular 

and constant inspection, are often separated and dispersed (an average of 4.1 miles 

apart as noted on page 12 of the USDA study) rather than concentrated in one location, and are not generally as heavily utilized because of the seasonal nature of production agriculture. Geographic location and concentration in rural areas, along 

with the dispersed nature of tank locations, also reduces risk. It’s also highly un-
65 

likely that multiple tanks that are widely dispersed are going to rupture simultaneously; this also means there is less likelihood of a concentrated spill in the remote 

case of a potential rupture and even less chance of any health risks. 

Question 5. Are you aware of any analysis that evaluates the degree of change 

in the amount of risk to the food supply should oil-contaminated water be used for 

irrigation purposes? 

Response. No. 

STATEMENT OF RIKI OTT, PH.D., AUTHOR AND MARINE TOXICOLOGIST

Thank you for inviting me to testify on oil spill prevention standards. 

My name is Riki Ott. I have a masters and doctorate in marine toxicology with 

a focus in oil pollution. I was on the scene before, during, and after the infamous 

Exxon Valdez oil spill. I am a 20-year resident of Cordova, Alaska. At the time of 

the oil spill, I was a commercial salmon fisherman in Prince William Sound. After 

the pink salmon and herring populations collapsed, unexpectedly, in 1992 and 

1993—along with Cordova’s economy, I retired from fishing to focus on helping rebuild my community. 

I have since co-founded three nonprofit organizations to deal with lingering social, 

economic, and environmental harm from this spill (www.alaskaforum.org, 

www.copperriver.org, www.orafoundation). I’ve also written a book on the legacy of 

the Exxon Valdez oil spill (Ott 2005). 

The lessons from our tragedy apply to spills of any size as well as public health 

and the environment. I would like to share three lessons with this committee and 

explain how each relates to the SPCC proposed rule. These lessons are: 

-Oil is far more toxic than we thought. 

-Prevention is critical. 

-Better, safer cleanup products need to be used. 

1. OIL IS FAR MORE TOXIC THAN WE THOUGHT. 

A paradigm shift in the scientific understanding of oil toxicity has occurred since 

passage of the Clean Water Act (CWA) and the Oil Pollution Act of 1990 (OPA 90). 

It is important to realize the limitations of the 1970s science. This science is based 

on standard laboratory bioassays, using single species, exposed for 96 hours to only 

the Water Soluble Fraction of crude oil. Based on these studies, scientists thought 

toxic components of oil evaporated quickly and sub-lethal effects were limited to invertebrates, and occurred at exposure levels of parts per million. This 1970s science 

underpins the risk assessment assumptions used by the EPA in its proposed rule 

change. 

The collapse of pink salmon and Pacific herring stocks in Prince William Sound 

was a tipping point for science, because the reality of what was occurring in the 

Sound—that is, long-term harm from the 1989 spill—did not match the 1970s understanding that oil only caused short-term harm. 

To determine what was going on in Prince William Sound, interdisciplinary teams 

of scientists conducted four ecosystem studies from 1993 to 2001. These complex 

studies were conducted in the field, using lab tests to interpret and/or validate field 

findings. The ecosystem studies used multiple species over multiple generations and 

focused on a particularly toxic fraction of crude oil called polycyclic aromatic hydrocarbons or PAHs. PAHs were largely ignored by the 1970s science. 

As a result of the ecosystems studies, scientists now realize that crude oil is 1,000 

times more toxic than previously thought. In many of the birds, fish, and mammals 

studied, 1-20 parts per billion PAHs were found to impair reproduction, disrupt immune system function, and generally decrease overall fitness (health) of individuals, 

resulting in declines of localized populations (Bodkin et al. 2002; Carls et al. 1999, 

2002; Esler et al. 2000, 2002; Golet et al. 2002; Matkin et al. 1999; Thomas and 

Thorne 2003; Trust et al. 2000). 

Further, these effects are still happening in areas once heavily oiled. Only 7 of 

28 species are listed as fully recovered by the Exxon Valdez Oil Spill Trustee Council (EVOSTC 2002). After 16 years, there is relatively fresh, toxic oil still on the 

beaches, and it is still bioavailable (Carls et al. 2001; Short et al. 2004), much to 

the amazement of scientists and disappointment of residents. I have a sample collected this past summer that I’ll pass around when I’m done. The emerging paradigm is summarized in an article in Science in December 2003 (Attachment 1: Peterson et al. 2003) 

Findings in medical science support the new paradigm and show that low levels 

of PAHs also harm public health. For example, medical doctors link low levels of 
66 

PAH exposure with asthma, depression, and chemical sensitivities (Ashford and Miller 1998). In 1999 the EPA added 22 PAHs in crude oil to its list of persistent, bioaccumulative, toxic pollutants. This list includes lead, dioxin, mercury, PCBs, and 

DDT and now PAHs (U.S. EPA 2000). 

This relates to today’s hearing because the 1990s science on oil toxicity supplants 

the 1970s science and changes the risk assessment equation. Oil is more toxic than 

we thought. Since oil exposure causes greater known risk to the public and the environment, we need to increase, not decrease, spill prevention standards to reduce the 

likelihood of spilling it. 

2. PREVENTION IS CRITICAL. 

Another reason to maintain strong standards for spill prevention is industry’s 

general inability to contain and clean up spilled oil. The public has witnessed, time 

and again, industry’s inept fumbling ever since England’s Torrey Canyon spill (in 

1968). Even one of the most technologically sophisticated companies in the world 

only managed to recover a small fraction of what was spilled in Prince William 

Sound (Ott 2005; Spies et al. 1996). 

The size of the spill doesn’t matter. The 1,000-gallon spill in Puget Sound, Washington, (2004) oiled hundreds of miles of coastline, while the massive Exxon Valdez 

oiled thousands. 

This relates to today’s hearing because the EPA’s proposal to lower the threshold 

for spill planning and prevention essentially guarantees the small facilities will 

have more spills. Why? Because less liability equates to more spilled oil. 

The National Research Council found that for tankers, oil spillage dropped off significantly after 1991, following passage of OPA 90 (2002). Industry watchers attribute the reduced spillage to preventative measures and increased industry concerns over escalating financial liability (de Bettencourt et al. 2001). As one senior 

U.S. Coast Guard officer put it, the ‘‘requirement for some ships to assume a higher 

level of financial liability for spilling oil has likely had a greater impact on reducing 

the amount spilled than the plethora of ’command and control ’regulations that (preceded or) followed OPA 90’’ (Elliott 2001, 31). 

Reducing oil spills and oil pollution is a matter of making the polluter pay. Oil 

companies are experts at externalizing costs to society and the environment. Spill 

cleanup involves high costs to society because taxpayers foot the bill and because 

cleanup workers risk their health to deal with hazardous waste cleanups, including 

oil spills. Facility owners should be held responsible for spill prevention not exempted from it. 

3. BETTER, SAFER CLEANUP PRODUCTS NEED TO BE USED. 

The third reason for maintaining strong oil spill prevention standards is that, 

when oil does spill, industry’s preferred method of cleanup is chemical products. 

This often creates more problems than is solves, because cleanup products often contain industrial solvents to dissolve oil and grease and, thus, are environmental hazards. 

One dispersant that was used during the Exxon Valdez cleanup is Exxon’s Corexit 

9527, which contains an OSHA human health hazard called 2-butoxyethanol. 

Exxon’s Material Safety Data Sheet for Corexit 9527 states: ‘‘Prevent liquid from entering sewers, watercourses, or low areas. Contain spilled liquid—’’ (Exxon 1992). 

This product was sprayed on water and beaches during Exxon’s cleanup. It is currently stockpiled in Alaska, California, Washington, Hawaii, Texas, Florida, New 

York, and Puerto Rico and likely other places. 

How is this allowed? The EPA maintains a schedule of chemical products for use 

in the National Oil and Hazardous Substances Pollution Contingency Plan. The 

EPA only screens products for effects on animals and the environment-not humans. 

Yet, it’s not just the environment that’s at risk when chemical products are used, 

it’s spill responders and the public in places where drinking water or land may become contaminated. Evidence of sick workers from the Exxon Valdez cleanup suggests it’s time to include effects on humans in product assessment (Ott 2005). 

There are no guarantees that the products are safe for the environment either 

(Attachment 2: Nichols 2001). Products are designed for specific purposes; however, 

the EPA admits its system is rife with abuse: ‘‘misuse . . . may cause further harm 

to the environment than the oil alone’’ (ibid., 1481). 

For example, during the Exxon Valdez cleanup, dispersants designed for open 

water use were applied directly on beaches, despite voluntary guidelines adopted by 

the Alaska Regional Response Team (1989) through a consensus process with stakeholders that dispersant use was not recommended on beaches and in nearshore 

areas. 
67 

Other problems with the Product Schedule that should concern this committee are: 

-A loophole in subpart J, which allows South Louisiana crude to be mixed 50:50 

with Prudhoe Bay crude so dispersants will meet the EPA’s minimum 45 percent 

effectiveness threshold for product listing (Nichols 2001). This creates an illusion 

that dispersants work and eliminates industry incentive to develop ones that actually do. 

-No formal de-listing process in Schedule C, requiring the manufacturer to notify 

the EPA when products are no longer manufactured, and to provide a written explanation for the de-listing. This is like discovering a product is dangerous, but never 

publicly announcing its recall, or the reasons for the recall, so the public is unaware 

of any health risk from use or exposure. 

-No requirement to test stockpiled product periodically to ensure effectiveness. 

This relates to today’s hearing because it is cheaper for industry to throw chemical products at spilled oil than to prevent the spill from happening in the first 

place. Reducing spill prevention standards is another example of externalizing costs 

to the public because it virtually ensures more cleanup products will be used. 

To summarize, I’ve addressed three reasons for maintaining strong oil spill prevention standards, based on direct experience in dealing with an oil spill. First, oil 

is more toxic than we thought; second, oil is nearly impossible to contain and cleanup once it does spill; and third, the chemical cleanup products introduce more risk 

for spill responders, the public, and the environment. All of what I’ve discussed is 

covered in my book (Ott 2005), which I would like to leave with this committee. 

I urge this committee to reject the EPA’s proposed rulemaking to lower standards 

for spill prevention for small facilities. 

Thank you for the opportunity to testify. 

RESPONSES BY RIKI OTT TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. Can you describe your reaction to the proposal by some in industry 

that the Clean Water Act’s definition of navigable waters should be narrowed, thereby limiting the facilities that would be required to have an SPCC plan, as well as 

removing general Clean Water Act protections from many wetlands, tributaries, and 

streams? Is it appropriate for a change of this magnitude to be negotiated as part 

of a settlement with a single party? 

Response. Industry would like to dismantle the Clean Water Act and has grown 

quite bold under this Administration. Wetlands, tributaries, and streams provide 

critical habitat for many sensitive species. Wetlands also filter water, providing a 

critical cleaning function that could easily be overwhelmed. Think of trying to 

dredge a wetland to clean it of deposited pollutants like occasionally must be done 

in harbors! The CWA was designed to protect critical habitat and habit function for 

all Americans. It would be tragic and a blow to the public trust if something as basic 

as clean water protection was ‘sold down the river’ for one party in a settlement. 

Question 2. Can you respond to Mr. Cummings suggestion that despite the fact 

that secondary containment is the best protection for spills from oil tanks, marginal 

crude oil wells should receive differential treatment under the SPCC rule? 

Response. Marginal oil wells should NOT receive differential treatment under the 

SPCC rule. This is a problem we encounter all the time in Alaska when oil wells 

end their peak production years and start to wind down or, conversely, when new 

‘‘marginal’’ fields are first developed. It seems one of the first cost cuts in ‘‘marginal’’ 

fields is environmental costs such as spill prevention measures. An oil spill from a 

‘‘marginal’’ field costs the same to the public and the environment as a spill from 

a productive field! If the field is too ‘‘marginal’’ to do business in an ‘‘environmentally sound manner’’ as the industry likes to claim it does, then the company 

should do business elsewhere. Some costs, such as environmental and public protection, cannot be cut and must be a part of doing business. 

Question 3. Can you describe again your thoughts regarding the EPA’s testimony 

that they did not consider the evolution of the science regarding oil spill impacts 

and clean-up when making this SPCC proposal? 

Response. I was literally shocked when the EPA stated that they had not considered the new science when making their ruling. As a member of the public, I certainly assume that the EPA is following, knows about, and uses the most current 

science in its proposals and rule-makings. EPA’s rules and proposals are only as 

good as the science and models that these decisions are based upon. 

The risk assessment model is deeply flawed enough—with its outdated reliance 

upon only one chemical at a time and exposure to a 70 kg person (presumed male). 
68 

1See http://oils.gpa.unep.org/facts/source.htm, and http://www.offshore-environment.com/ 

oilpollution.html for links to many sources. 

In fact, the question of whether the regulatory system is too lax was covered in a 

four-part series in the Wall Street Journal last year! (P. Waldman 2005, ‘‘Common 

industrial chemicals in tiny doses raise health issues. Advanced tests often detect 

subtle biological effects; Are standards too lax?’’ 7/25/05, A1.) Lax standards allow 

activities that are dangerous to the public health and the environment—but this 

problem is certainly compounded by not using the most current science to boot! As 

you know, the cost-benefit analysis, then, factors in the ‘‘cost’’ of public health and 

the environment against the benefit the industry will provide. The cost-benefit analysis relies on the risk assessment to provide accurate costs. 

In this case, the new oil toxicity science adds significantly to the risk side of this 

equation as the science shows that oil is much more toxic than we thought from 

the 1970s science. Therefore, this added risk needs to be factored into the cost-benefit analysis for the SPCC proposal. The added risk to the public and the environment means that the industry (or party) must show much more benefit in order to 

counter balance this added risk. I certainly didn’t see enough benefit to justify gutting the Clean Water Act. 

STATEMENT OF JAMES J. CORBETT, PH.D., ASSISTANT PROFESSOR, MARINE POLICY

PROGRAM, GRADUATE COLLEGE OF MARINE STUDIES, UNIVERSITY OF DELEWARE

Good morning, Mr. Chairman and members of the committee. I am James J. 

Corbett, Jr., Assistant Professor in the College of Marine Studies at the University 

of Delaware. The College of Marine Studies is an interdisciplinary unit that conducts research and education regarding fundamental and applied problems in environmental science and policy. The college mission is to provide better understanding 

of oceanic, geologic and atmospheric systems and to inform society about human impacts on the environment. My research develops and applies tools and analyses to 

help reveal and evaluate technology-policy alternatives related to energy, environment, and transportation. Additionally, I have experience as a practicing professional engineer (PE) who certified Spill Prevention, Control, and Countermeasures 

(SPCC) plans, and experience as an operating engineer of facilities and ships that 

store, transport, and handle oil. The opinions I offer to you today are based on my 

review of the proposed regulations, on research studies showing that policies aimed 

primarily at one aspect of a situation often produce unintended consequences, and 

on how multiple stakeholders focus technology-policy debate on issues of central importance. 

SUMMARY OF CONCERNS WITH PROPOSED CHANGES

Spill Prevention Control and Countermeasures (SPCC) Plans serve to protect the 

public and our environment from oil discharges and spills. Landside runoff and discharges currently release significant amounts of oil into our waterways and their 

tributary streams, watersheds and groundwater connections.1

SPCC Plans also protect businesses, both small and large, from the direct cleanup 

costs and liability for damages. Oil spills and discharges from routine operations impair our Nation’s fertile land, the water network that gives it life, the living ecosystems impacted by oil toxicity, and the public health. The costs of preparing SPCC 

plans, including the costs of maintaining their certification through training and 

periodic review, afford businesses the benefits of fewer spills, better control of routine discharges, and countermeasures that may contain spills within the facility, instead of polluting a facility’s neighboring communities and environment. In other 

words, SPCC plans are recognized successes at minimizing the burden of oil spills 

to business and society, because they reduce the risk—both the likelihood and the 

consequences—of oil spills. 

From a policy perspective, good environmental regulation reduces impacts and 

costs of pollution that are external to a facility’s normal operation—this remains an 

explicit purpose of the original SPCC plan requirements. The EPA’s SPCC regulations (and OPA 90) successfully required that facilities internally cover the costs of 

protecting the environment and public from oil spills, because businesses must bear 

the costs of a certified SPCC plan and bear the costs of spill cleanup if the plan 

fails. In this regard, a good SPCC plan is more cost effective through prevention, 

control, and countermeasures within a facility than the direct and indirect costs of 

responding after a spill. 

EPA’s proposed revisions raise the question whether it is more beneficial to act 

to prevent an event or to respond afterwards [U.S. Environmental Protection Agen-
69 

2This conclusion appears not to be based on predicted total costs from a statistical regression, 

which presented very similar cleanup costs per gallon, usually ranging between $0.16 and $0.21 

per gallon. 

cy, 2005]. In fact, some of the proposed changes appear to reduce or defer indefinitely the burden of spill prevention for some facilities. EPA’s proposed SPCC revisions use a rationale that argues it is better for small facilities to bear the greater 

burden of liability without adequate spill prevention measures. Specifically, I have 

three major policy concerns: 

1. Preventing spills appears in the revised rule to be less important for smaller 

facilities. Without a risk-based justification, this provision implies that only facilities 

large enough to afford spill prevention plans should be asked to do them, while leaving smaller facilities exposed to the risk of higher cleanup and liability costs. The 

proposed rule does not consider properly that higher overall risk to public health 

and the environment may be associated with facilities exempted in the revision. 

More frequent (if smaller volume) spills and discharges can occur from smaller facilities, contrary to EPA’s summary statements. 

2. The rule indefinitely allows agricultural facilities to avoid SPCC plan compliance, even though spill prevention may better protect rural, farming areas of our 

Nation that are more connected to our environment and our food supply than many 

commercial facilities that must complete SPCC plans. If agricultural oil storage and 

handling facilities are among the smallest, most distributed facilities addressed by 

the SPCC rule, they are also among those that may impact most our groundwater, 

irrigation networks, wetlands, and navigable waterways. 

3. The proposed revisions weaken certification requirements by relying less on 

independent, professional expertise. The justification appears to be that SPCC plans 

can be obtained by industry at lower cost, without a convincing argument that the 

public receives equivalent protection from the risk of spills, or any other public benefit in tradeoff. Justifying self-certification of SPCC plans on the basis that no spills 

occurred in the past decade is like allowing me to write prescriptions for my child, 

instead of requiring a physician’s examination and judgment, because she hasn’t 

had a serious illness in the past ten years. It provides no public guarantee, or sufficient requirement, that the person certifying the plan posesses education, professional qualifications, and the commitment to public safety that professional engineering licensure requires. 

The remainder of my testimony discusses these points in greater detail. 

EXEMPTING SMALL FACILITIES REDUCES PROTECTION WITHOUT REDUCING COSTS

It is not clear that EPA is correct in its claim that it significantly reduces ‘‘the 

burden imposed on the regulated community in complying with the SPCC requirements, while maintaining protection of human health and the environment.’’ EPA 

claims that a key limitation in their recent analysis is lack of data on regulated facilities. However, EPA uses its own 1995 survey data [U.S. Environmental Protection Agency, 1996a; U.S. Environmental Protection Agency, 1996b], collected for the 

specific purpose of reviewing the efficacy of the SPCC regulation. These data provide 

significant evidence that SPCC plans effectively reduce the burden of spill liability 

for facilities and that SPCC plans may protect small facilities more than larger 

ones. EPA’s survey analysis ‘‘revealed that compliance with the SPCC provisions reduces the number of spills, spill volume and the amount of oil that migrates outside 

of the facility’s boundaries. It also indicated that compliance with one SPCC provision serves as a general indicator of a facility’s awareness of the importance of other 

spill prevention and control measures’’ [U.S. Environmental Protection Agency, 

1996a; U.S. Environmental Protection Agency, 1996b]. This reduces the liability 

small businesses face if a spill occurs. 

EPA’s proposed rule quotes their SPCC survey report claiming that facilities with 

larger storage capacity are likely to have a greater number of oil spills, larger volumes of oil spilled, and greater cleanup costs.2 Indeed, actual data from the SPCC 

survey shows significantly different costs on a per gallon spilled basis. EPA data 

show that with an SPCC plan, small facility spills cost less per gallon to clean up 

than large facility spills. 

EPA survey data shows that an SPCC plan reduces cleanup costs and that smaller facilities face lower cleanup costs than larger facilities, even on a per gallon 

spilled basis. This is because with an effective SPCC plan, spills are smaller, less 

frequent, and better contained within the facility. In exempting small facilities from 

plan requirements, the proposed rule states that ‘‘small facilities no longer required 

to have SPCC plans are still liable for cleanup costs and damages.’’ Strangely, this 
70 

3 : Chapter 5: Energy Use in Agriculture, http://www.usda.gov/oce/gcpo/ghginventory.html,. 

4See http://www.epa.gov/oilspill/spccref.htm, specifically http://www.epa.gov/oilspill/pdfs/pap— 

risk.pdf. 

justification suggests that exposing small facilities to the direct and liability costs 

of larger spills is better than requiring SPCC plans to protect the public and the 

environment through prevention of spills, or through controls and countermeasures 

to minimize them and confine them to the facility. EPA’s rationale argues that society and businesses are better off paying for the consequences of spills from small 

facilities rather than preventing them. 

DELAYING AGRICULTURAL FACILITY COMPLIANCE IS INADEQUATELY JUSTIFIED

Quoting from a current report by USDA3 [U.S. Department of Agriculture, 2004]: 

‘‘Energy is used directly in agriculture for a range of purposes, including operating 

vehicles and irrigation pumps, and controlling indoor temperatures of greenhouses, 

barns, and other farm buildings. Crop production requires a large amount of liquid 

fuel for field operations. Most large farms use diesel-fueled vehicles for tilling, planting, cultivating, disking, harvesting, and applying chemicals. Gasoline is used for 

small trucks and older harvesting equipment primarily. Smaller farms are more 

likely to use gasoline-powered equipment, but as farms get larger they tend to use 

more diesel fuel. In addition, energy is used in some operations to dry crops such 

as grain, tobacco, and peanuts; and livestock operations use energy to operate various types of equipment.’’ 

EPA’s own ‘‘survey data indicate that two industries (Farms and Oil Production) 

constitute about 80 percent of the SPCC-regulated universe. Manufacturing, Transportation, and Gasoline Stations/Vehicle Fueling constitute the next 12 percent of 

facilities. All other industries combined make up the remaining 8 percent.’’ EPA also 

notes that ‘‘while farms may comprise a sizable portion of the SPCC-regulated universe, [farms that would require SPCC plans] represent only a small percentage (8 

percent) of the farms in the United States. Farms in general have smaller storage 

capacity, fewer tanks, and lower throughput levels than other types of facilities’’ 

[U.S. Environmental Protection Agency, 1996a; U.S. Environmental Protection 

Agency, 1996b].4 One may presume that these represent the 8 percent of farms at 

highest spill risk, or at least that these store, transfer, or use the most oil. This information is summarized in Figure 1. 

Figure 1 suggests that farms may not be disproportionately burdened compared 

to other industries. However, such a conclusion should consider the oil spill risk 

from agricultural SPCC facilities compared to SPCC facilities in other sectors. My 

estimate in Table 1 of the total petroleum usage by the agriculture sector indicates 
71 

that farms store, transfer, and use about the same quantity oil products as the Nation’s commercial sector, or about half as much oil as the electric power industry. 

More directly, the 1996 Survey data can be used to compare SPCC facilities by 

sector as part of the set of all facilities covered by SPCC requirements. This is 

shown in Figure 2, which plots the percent of regulated facilities and the percent 

of reported spills by sector. In this figure, farms appear to be ranked third among 

SPCC-facility spills by sector, behind only manufacturing and oil production. Based 

on the survey data, EPA may be deferring indefinitely the compliance requirements 

for those farms where an SPCC plan made the most positive difference. Survey data 

indicate that less than 2 percent of all agricultural spills in facilities with SPCC 

plans escape secondary containment; this demonstrates that control and countermeasures in SPCC plans for farms are nearly as effective as SPCC plans are for 

the electric power sector. 

Is the indefinite deferment of compliance requirements justified for facilities in 

one sector, but not for other sectors with similar oil consumption and/or spill rates? 

Potential spill consequences from agriculture may directly damage our crop lands, 

water irrigation networks, groundwater aquifers, and associated wetlands and waterways. EPA’s proposed rulemaking doesn’t consider that consequences from agricultural spills to rural ecosystems may be greater than consequences of commercial 

sector spill in more urban regions. 

PROFESSIONAL ENGINEER CERTIFICATION VERSUS SELF-CERTIFICATION

Exempting some facilities from PE certification of an SPCC appears counter to the 

justifications for other exemptions from PE certifications, such as industry exemptions for mechanical and electrical engineers. Moreover, 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 
72 

5Mechanical Engineer magazine http://www.memagazine.org/backissues/may99/features/ 

tolicense/tolicense.html. 

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. 

Self-certification of SPCC plans for smaller facilities appears similar to an industry exemption for other engineering documents and plans, but it is not. Industry exemptions have been generally provided to unlicensed, practicing engineers who are 

directly employed by the company for which they provide engineering services.5

Such exemptions have been justified for the following reasons: 

1. Engineering services provided within a company for the company’s benefit (e.g., 

revenue and profit) do not present a conflict of interest between an engineer’s independent judgment and his/her loyalty to the company. 

2. The business assumes direct responsibility as employer for the quality of the 

unlicensed engineer’s work; this provides the company with motivation to hire and 

train well-qualified engineering employees. 

3. Therefore, when the best engineering judgment of the employee engineer is exercised, there is reasonable assurance that both the company’s and individual’s interests are served. 

Unlike engineering services provided by an unlicensed employee under the industry exemption, required SPCC plans serve the public goal of protecting the environment. EPA appears to misapply the logic behind industry exemptions or they ignore 

the real and potential conflicts of interest inherent in their self-certification proposal. Unlicensed employees are not protected if they attempt to ‘‘protect the public’’ 

in opposition to their employer’s economic motivations. (Licensed professional engineers within the same company may face similar potential conflicts, but may be less 

influenced by virtue of their license and code of conduct requirements ‘‘to protect 

and safeguard the health, safety, welfare, and property of the public.’’) 

The possibility that an owner/operator without proper engineering skills will selfcertify a facility presents even greater concern. In this case, the possibility of a conflict of interest that puts the public at risk is compounded because the public has 

no assurance that judgments made to self-certify the SPCC plan are founded in the 

qualifications and training of the individual owner/operator. Many owner/operators 

may make adequate judgments based upon experience or because their facility has 

avoided spills in the recent past. However, the proposed rule provides no way of assessing an manager’s contribution to a spill free past at a facility; in short, the proposed revision cannot assure the public that the environment is protected from oil 

spills. 

FURTHER ANALYSIS IS MERITED FOR PROPOSED SPCC REQUIREMENTS

There is a need for better risk-based analysis before EPA relieves the burden of 

regulation (i.e., costs) to oil storage and transfer facilities without considering properly how this burden shifts to the public. Environmental consequences may not be 

primarily influenced by spill size, but by spill impacts. The SPCC Facility Survey 

Analysis presents graphs of simplified statistical relationships that may be misleading, given that the statistical regressions for small facilities appear systematically biased. More importantly, these data appear to only represent costs of spills 

from facilities with certified SPCC plans; spill costs from SPCC-exempt facilities 

could be much greater than facilities where certified SPCC plans helped minimize 

the frequency and size of spills—and therefore the liability and clean-up costs to 

those facilities. 

This is partly acknowledged within the EPA analysis of their survey data; the report states ‘‘if small facilities, for example, are assumed to be less aware of the NRC 

and the Clean Water Act reporting requirements (due to limited resources for example), then these facilities would be less likely to have spill records in ERNS and the 

results of the comparison described above would be biased downward.’’ However, 

underreporting is not the only threat to validity of EPA’s conclusions. The survey 

data summarized in the analysis reveals bias in the derived statistics for smaller 

facilities. In fact, it appears from the data that some smaller facilities have more 

and larger spills than the simplified statistics predict. Using actual versus predicted 

data reinforces that exempting smaller facilities may be inconsistent with the goal 

to reduce the risk of spills. 

An analysis of the data summarized in EPA’s survey confirms a more important 

fact about oil spills. Plotting EPA’s survey data for costs of clean up per gallon and 

per spill reveals that the cost of cleaning up most oil spills is not proportional to 

the gallons of oil spilled or number of spills; rather, costs are more related to clean-
73 

up efforts and restoring the impacted environment. In other words, where a small 

amount of spilled oil fouls a local environment and impacts water, soil, and living 

ecosystems, a larger spill may cause proportionally less damage and can cost less 

per gallon to clean up. This general fact is not new, and is not limited to land-based 

oil facilities covered under OPA 90 and the Clean Water Act; a similar conclusion 

was reached by a study for the National Academy of Sciences in Special Report 259 

[Tikka et al., 2001], which simulated physical impacts from various volumes of 

spilled oil under a variety of oil tanker spill scenarios. 
74 
75 
76 
77 
78 
79 

ADDITTIONAL STATEMENT OF JAMES J. CORBETT, JR., P.E., PH.D., ASSISTANT

PROFESSOR, UNIVERSITY OF DELAWARE

In December 2005 testimony to the U.S. Senate Committee on Environment and 

Public Works http://epw.senate.gov/hearing statements.cfm?id=249640.1 provided 

initial comments on the potential problems with the proposed SPCC rule amendments. I attach my testimony here, and submit additional comments that suggest 

a more effective strategy to meet the small business administration goal to relieve 

regulatory burden without weakening the public protections that SPCC requirements provide. These additional comments are based on a thorough review of limited data obtained since that testimony, but may not include all the information 

available to EPA or other stakeholders. 

THE PROPOSED RULE PROVIDES SIGNIFICANTLY FEWER BENEFITS TO SMALL

AGRICULTURAL OPERATIONS THAN EPA PROPOSED RULE AND OTHERS ESTIMATE. 

Since my testimony before the U.S. Senate Committee on Public Works and Environment, I reviewed a copy of the survey analysis prepared for the National Council 

of Farm Cooperatives (NCFC) submitted as part of senate testimony by Mr. Richard 

G. Owen, Director, CHS, Inc.; he refers to this as the USDA study and I will refer 

to this as the NCFC survey analysis [Crooks et al., 2005]. My motivation was to 

help address Senator Inhofe’s question at the end of the hearing about whether 

EPA’s data or the USDA survey data were correct regarding the percent of farms 

that may be subject to SPCC requirements due to their oil storage volumes. The 

survey sample obtained by the NCFC survey is useful, but needed to be adjusted 

to remove sample bias and better represent the overall farm population; this was 

Not done in the survey report or analysis. Essentially both conclusions seem wrong: 

1) More than 8 percent farms will be subject to SPCC rules than the 1996 EPA data 

suggest, and 2) Far fewer farms will be benefited than the USDA Survey conclusions that nearly 70 percent of farms will have to comply. 

The percent of farms subject to current SPCC rules is less than 70 percent. As 

shown in Table 1, the total number of farms according to USDA greatly exceeds the 

total number of farms considered by the NCFC survey as the population potentially 

subject to SPCC regulations. Footnote 3 of their survey analysis implies that the 

more than 766,000 farms they excluded from their survey may not be subject to 

SPCC rules because they may be ‘‘hobby farms.’’ I am not convinced that this is 

true; but if true and if ′′hobby farms’’ generally store less than 1,320 gallons, then 

the maximum percent of farms subject to the rule would be 64 percent. And since 

only those agricultural facilities storing more than 1,320 gallons but less than 

10,000 gallons would ‘‘benefit’’ from the delayed compliance, the proposed rulemaking clearly affects fewer than 70 percent of farms. 

Somewhere between 23 percent and 35 percent of farms appear to be subject to 

the SPCC requirements (storing more than 1,320 gallons). Using standard techniques to weight survey results for population demographics, the survey data obtained by NCFC can be corrected to estimate the number of farms that actually 

store oil in quantities that make them subject to current SPCC regulations. The actual percentage will depend on how closely farmers harvesting rice, corn, soybeans, 

wheat, and cotton are representative of all other farmers. (Note that the NCFC 

analysis clearly states that its survey sample did NOT include all farms with harvested crop land, and no livestock ranches. The NCFC analysis used a list from 

USDA’s Farm Service Agency that included ONLY rice, corn, soybeans, wheat, and 

cotton farmers.) The lower bound conforms to the implicit assumption in the USDA 

analysis (footnote 3) that only the 1.36 million farms with harvested crop land 

would require SPCC plans; I would not recommend this assumption for a best estimate without additional data on those farms and ranches that the USDA survey 

ignored. Clearly, more farms appear to be subject to SPCC rules than the 8 percent 

estimated by earlier EPA studies. The population-weighted summary in Table 2 

makes the assumption that farms outside the survey population are similar to those 

surveyed, suggesting that 33 percent of all farms may require SPCC plans; this represents my best estimate without better survey data. 

In other words, most farms (between 65 percent -77 percent) are not subject to 

current rules, at all. Moreover, since those farms storing more than 10,000 gallons 

of oil would not be exempt or deferred from any requirements under the proposed 

changes, EPA’s proposed rulemaking will relax SPCC requirements for less than 33 

percent of farms (using Table 2 and Figure 1). If the NCFC survey assumption implicit in footnote 3 is valid (that ‘‘hobby farms’’ are not subject to SPCC rules because they are not commercial or because they generally store less than 1320 gallons), then the proposed rulemaking relaxes SPCC requirements for less than 19 

percent of farms. 
80 

Fewer than 28 percent of farms would be able to defer spill prevention requirements under the proposed rule changes. Ignoring whether deferment applies only 

to a subset of farms storing less than 10,000 gallons but more than 1320 gallons, 

the NCFC survey data can be used to estimate the number of farms potentially subject to the deferment provisions in the proposed rulemaking. As shown in Figure 

1, there is clearly a relationship between the size of farm and quantity of oil stored. 

While all farm sizes surveyed identified some farms that stored less than 1320 gallons, farms less than 200 acres are more than three times more likely than larger 

farms to be exempt from current rules already. More to the point, fewer than 

410,000 of farms (<28 percent) store between 1320 gallons and 10,000 gallons. (Ignoring what NCFC refers to as ‘‘hobby farms’’ reduces the estimated percent of 

farms that could defer SPCC requirements to only 19 percent of all farms.) Even 

assuming that decreased spill prevention afforded these farms some potential ‘‘benefit’’ from indefinite deferment under proposed rule changes, more than half of these 

farms are larger than 200 acres and may not be small businesses. 

The proposed rule may delay compliance for less than 19-28 percent of all farms. 

According to the question exchange between Senator Thune, of south Dakota, and 

Mr. Thomas Dunne, Acting Assistant Administrator, Office of Solid Waste and 

Emergency Response, US EPA, farms that are not yet in compliance would not qualify for the deferment from SPCC planning requirements. My impression is that very 

few farmers have achieved compliance with current SPCC regulations; therefore 

even fewer farms may be ‘‘benefited’’ if the question exchange between Mr. Dunne 

and Senator Thune was accurate. I would request that EPA provide information 

clarifying this, 
81 
82 

Some states may realize much greater impact from the proposed rule changes 

than others, and farms in some important agricultural states may be much less affected than claimed. Using the same standard survey techniques to re-weight biased 

survey samples for their populations, a state-by-state picture of the potential impact 

of the proposed rulemaking is possible. This would require that the national (and 

regional) survey data was representative at each state level-a condition not in evidence in the NCFC survey analysis. However, for illustration purposes, I used the 

national summary of the NCFC survey data to consider expected differences among 

a few agricultural states (the four most discussed during the Senate Hearing). Figure 2 shows that the NCFC survey data (national average) poorly represents three 

of the four states considered. Specifically, the NCFC data underestimates smaller 

farms in California and Delaware, and overestimates the number of smaller farms 

in Montana. (Coincidentally, the national-level NCFC survey data respectively 

underestimates and overestimates these states by about 20 percent those farms 

smaller than 200 acres.) The NCFC national-level most closely represents farms in 

Oklahoma, and underestimates USDA farm populations for smaller farms by about 

10 percent. 

The avoided costs calculated as ‘‘benefits’’ in the NCFC survey analysis are not 

easily reproduced, contain apparent error, and are based on survey responses that 

cannot be verified through independent estimates. It appears that only costs of Professional Engineering (PE) certification should be considered for smaller (non-farm) 

facilities, since the SPCC plan and all ofits other requirements would still apply (albeit without independent verification or enforcement value). Potential reduction in 

PE certification costs may only apply to the 19 percent-28 percent of all farms that 

store between 1320 and 10,000 gallons if they fully prepare SPCC plans but selfcertify. This percentage is an upper bound, since some of these farms likely comply 

already with SPCC requirements and would not need recertification unless they 

change their facility design or operation. The number of farms with reduced compliance costs may be fewer still, since those farms are not yet in compliance, and (according to Mr. Dunne’s answers to Senator Thune’s questions) these farms would 

not qualify for the deferment from SPCC planning. I would like to get more information clarifying this. In any case, the NCFC survey estimates appear to be calculated 

inappropriately from data on total SPCC plan costs for all farms, and the survey 

sample biases are not corrected for the population of farms. 

Because of the non-uniformity of farms storing quantities that may qualify for indefinite deferment, the risk of spills from deferred farms may pose greater threats 

to waterways, and other environmentally sensitive areas. The farms most likely to 

‘‘benefit’’ from the proposed rulemaking need to be considered geo-spatially on a risk 

basis. Simply using the illustration in Figure 2, one can immediately recognize the 

potential for coastal watersheds in California and Delaware to be at greater risk 

than Montana and Oklahoma, since these states are likely to have more farms that 

qualify for the indefinite deferment of SPCC requirements. In other words, there are 

likely to be inequities among the protections required by farms in some states and 

these will likely increase risk to some watersheds; without a risk-based analysis at 

least state by state, the proposed rule changes may asymmetrically shift the environmental risk of oil spills to those most costly to remediate and most important 

to prevent. (NOTE: One cannot directly assign oil storage capacities to these data 

from the NCFC survey without the assumption that the survey respondents were 

representative of each state; given only regional survey results reported in the 

NCFC study, no attempt is made here to extend those results to the state level.) 

Further analyses of other industrial sectors are needed to support any revisions 

to current SPCC regulations, and these need to be risk-based and better designed 

than the proposed rulemaking. Similar to the efforts focused on agriculture that are 
83 

discussed above, other sectors should be explicitly studied before the assumption is 

made by EPA that simply reducing compliance requirements meets the intent of 

SPCC regulations and their originating legislation. These analyses should be geospatial to demonstrate that any inequities arising from less stringent requirements 

do not pose greater risk to human health or the environment. Regulatory impact 

assessments need to consider not only avoided costs of compliance, but potential increased costs of response to oil spills (both direct and indirect). Small business advocates should consider these carefully for other non-farm sectors before advocating 

a set of changes that may not relieve the small business burden. 

I am concerned that support of self-certification for SPCC plans may be based on 

misplaced confidence in specific industry sectors that receive significant oversight 

and attention in many dimensions (e.g., like the oversight air transport receives regarding security, environment, passenger comfort, etc.) or it appears based on a mistaken belief that industry self regulation is universally effective across all 

externalities. With regard to the air transport sector, I think issues of passenger 

safety and reliability off light operations may be fundamentally consistent with limited self regulation in these domains. As I said in my testimony, there is an important difference between industry exemptions (or self regulation) where the internal 

interests of the industrial organization are clearly aligned with the goals of individual managers and the public. In the case of oil spill prevention, these environmental concerns are often (but not always) external to the normal operational mission of the organization and its people. In other words, there is no reasonable expectation that the market will internalize the external costs of oil spill prevention to 

protect the public and our environment; that is why environmental performance improvement is often labeled an economic externality. 

EPA should provide updated guidance that allows Professional Engineers better 

enable the industry to work with licensed professionals to identify innovative and 

flexible solutions to impracticable defaults on an individual equipment basis. For example, clear guidance can assist the air transport sector and other sectors in ways 

that may support a PE’s finding that secondary containment is impracticable on an 

individual equipment basis, since the current rule already allows for this. The current regulations are not one-size-fits-all. Importantly, there is no requirement under 

current SPCC regulations that prohibits facility personnel from preparing their own 

SPCC plans; if well-run facilities routinely outsource their SPCC plan preparation 

to engineering firms (e.g., in air transport and other highly visible sectors), then 

that may be evidence that external expertise for basic plan preparation is less costly. Indeed, the only cost that would be avoided under the proposed changes is the 

cost of PE review and certification, perhaps the least costly part of many facilities’ 

SPCC plans. 

It is the expertise of the individuals involved in preparing, reviewing, and certifying an SPCC plan that ensures the public that a facility without a spill for the 

past decade will remain spill free during the next. The purpose of the legislation 

behind the SPCC regulations is one of public protection, fundamentally. The fundamental and obvious flaw in EPA’s proposed rule with regard to self-certification is 

that it does nothing to ensure this expertise in the individuals, falsely assuming 

that a spill-free facility will always remain so. As I said in my oral response to Senate questions, this is like suggesting any individual without a license can safely 

drive or repair a car that has been accident free for ten years. I am aware of dozens 

of examples where such flawed logic has been exposed through tragedy. 

Better strategies are available to assist farms (in particular) and other small businesses. 

Risk of oil spills exists where significant quantities of oil are stored, transported, 

and used, and liability remains with the polluter. However, the risk of a spill event 

is not uniform; according to EPA data [U.S. Environmental Protection Agency, 

1996a; U.S. Environmental Protection Agency, 1996b], the risk is higher when facilities do not have a valid SPCC plan and/or are not following its recommendations 

for secondary containment and operator training, etc. 

Clean Marina programs offer a better model than the proposed rule changes for 

reducing the burden of compliance. To consider PE costs for small facilities, I looked 

into the innovative Clean Marina programs for Delaware, Maryland, Connecticut, 

and New jersey (at least), where an SPCC template was developed specific to these 

similar facilities (for links to these programs, see http://cleanmarinas.noaa.gov/ 

marinalinks.htmfl. I found that a PE certification for a small facility that develops 

its own plan may range between $1,000 and $5,000 per plan (about 1-2 days work 

for a small firm or independent PE). Maryland negotiated lower rates with an engineering firm and directly covers the cost for PE certification on behalf of Clean Marina members (http://www.dnr.state.md.us/boating/cleanmarina/): Delaware has followed the template, but doesn’t subsidize the PE certification (http:// 
84 

www.dnrec.state.de.us/DNREC2000/P2/Marina/): New Jersey has some information 

showing significant improvement in compliance for marinas through outreach 

(http://www.state.nj.us/dep/njcleanmarina/). 

Agricultural facilities (and small facilities in other industry sectors) may demonstrate substantial similarities in their oil storage facilities and handling practices. 

As has been observed for marinas, facilities differ substantially in their primary 

purposes (e.g., sailboats, fishing vessels, etc., at marinas; or crop farming versus 

livestock ranching). However, there appear to be significant similarities in the quantities of oil stored and handled at different facilities. This suggests that a template 

developed with various industry sectors and with PE involvement could reduce significantly the cost of compliance, and may attract subsidies or assistance from Government agencies or industry groups. A counter argument that each facility within 

an industry sector is unique in its oil storage would provide additional justification 

for PE certification (e.g., if wheat farmers stored fuel differently than soybean farmers or cotton farmers). I discussed similar ways to assist farms through USDA assistance with Senate staff in December; flexibility clearly exists under the current 

SPCC requirements for a PE to help farms comply without undermining the benefits 

of SPCC plan protections. 

These proposed rule changes could encourage reconsideration of storage volumes 

near 10,000 gallons, and could result in more facilities storing oil to avoid meeting 

the 10,000 gallon threshold. For example, a farm with crop land on two sides of a 

public road may try to designate each orchard, field, or vineyard as a separate facility; this could expose more of our fertile land, irrigation systems, wetlands, and waterways to the risk of spills. Under the proposed changes, there is no mechanism 

to prevent facilities from working to classify facilities in discrete terms that enable 

the wider dispersion of oil storage in units less than 10,000 gallons each. The definition of a facility must be made clearer (or remain consistent with earlier interpretations), and EPA should prevent a situation in which businesses may freely redefine 

facilities into smaller parcels to avoid proper planning for handling, transfer, and 

storage of oil. EPA guidance on facility definition should conform to definitions used 

in normal business practices for financial, emergency planning, and other purposes. 

To increase flexibility and reduce costs to small businesses, PE certification burden for farms and other sectors may be further reduced by allowing adjacent or collated facilities (e.g., separate farms within a county or watershed) to share the certification costs if their facilities store and handle oil similarly. In my experience, 

larger military installations chose to consider all oil stored with their boundaries in 

aggregate to determine whether a plan was required. Separate site plans were provided for each location in the SPCC plan that independently met the threshold, and 

these were grouped by type of operation. This approach allowed military bases to 

contain in one plan facilities for on-base restaurant concessions, retail and military 

gasoline stations, air transport operations, and leased agricultural lands. This approach reduces significantly the cost of PE certification by distributing it among cooperating facilities. Additional guidance would be required from EPA that emphasized the SPCC requirements for site-specific annual training, and would likely require that copies of plans be distributed to each facility (and/or site) within the larger plan. This flexible approach prevents the disaggregating of facilities to avoid spill 

prevention planning on the one hand, but enables small businesses to share the 

common burden of plan preparation. In general, there appear to be no competitive 

reasons that would motivate oil handling at storage in one facility to differ from 

other facilities within a business sector; this would therefore help EPA achieve best 

SPCC practices within sectors. 

The USDA Cooperative Services or other publicly funded industrial advocates 

should consider subsidizing resources need by farms to prepare better SPCC preparation guidance services, including partial or complete funding of expert review of 

plans by licensed Professional Engineers. This should also be considered for other 

industrial sectors through other Federal or state agencies, as appropriate. This 

would help small businesses in more tangible ways than the current purposed rules. 

It would also bring many non-complying facilities that are unaware of their status 

the help they need to prevent spills, which is the purpose of SPCC regulations and 

its legislative mandate. 

REFERENCES

Crooks, A.C., E.E. Eversull, and B.L. Rotan, Fuel/Oil Storage and Delivery for 

Farmers and Cooperatives, edited by Cooperative Services, Rural Development of 

the United States Department of Agriculture, National Council of Farmer Cooperatives, Washington, DC, 2005. 
85 

U.S. Environmental Protection Agency, Results of 1995 Survey of Oil Storage Facilities (July 1996), United States Environmental Protection Agency, Washington, 

DC, 1996a. 

U.S. Environmental Protection Agency, SPCC Facility Survey Results and Analysis, United States Environmental Protection Agency, Washington, DC, 1996b. 

RESPONSE OF JAMES J. CORBETT TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. Can you comment on Mr. Coyne’s proposal that individual, small companies, be permitted to self-certify to some of the more flexible requirements of the 

SPCC rule such as impracticality and environmental equivalence rather than depend upon the expertise of a professional engineer? 

Response. In general, I think Mr. Coyne’s summary of the air transport sector’s 

concerns are thoughtful and clearly described. In this regard, I may agree with Mr. 

Coyne when he affirms ‘‘the EPA’s willingness to listen to the industry regarding 

the impracticability of certain EPA regulations.’’ 

Mr. Coyne clearly understands the fuel and oil handling practices and storage facilities for air transport operations. While I have certified these types of facilities 

in military installations as a licensed Professional Engineer, he may have more immediate familiarity with spill prevention measures for commercial air transport. 

However, I am concerned that his support of self-certification for SPCC plans may 

be based on his confidence in an industry sector that receives significant oversight 

and attention in so many dimensions from security to environment to passenger 

comfort, or based on a belief that industry self regulation is universally effective. 

With regard to the air transport sector, I think issues of passenger safety and reliability of flight operations may be fundamentally consistent with limited self regulation in these domains. As I said in my testimony, there is an important difference 

between industry exemptions (or self regulation) where the internal interests of the 

industrial organization are clearly aligned with the goals of individual managers 

and the public. In the case of oil spill prevention, these environmental concerns are 

often (but not always) external to the normal operational mission of the organization 

and its people. In other words, there is no reasonable expectation that the market 

will internalize the external costs of oil spill prevention to protect the public and 

our environment; that is why environmental performance improvement is often labeled an economic externality. 

More to Mr. Coyne’s point, I would join him in encouraging the EPA to provide 

updated guidance that allows Professional Engineers to work with the air transport 

sector in ways that may support a PE’s finding ‘‘that secondary containment is impracticable on an individual equipment basis,’’ and enable the industry to work with 

licensed professionals to identify innovative and flexible solutions to impracticable 

defaults on an individual equipment basis. Importantly, there is no requirement 

under current SPCC regulations that prohibits facility personnel from preparing 

their own SPCC plans; if well-run air transport facilities routinely outsource their 

SPCC plan preparation to engineering firms, then that may be evidence that external expertise for basic plan preparation is less costly. Indeed, the only cost that 

would be avoided under the proposed changes is the cost of PE review and certification, perhaps the least costly part of many facilities’ SPCC plans. 

However, the purpose of the legislation behind the SPCC regulations is one of 

public protection, fundamentally. It is the expertise of the individuals involved in 

preparing, reviewing, and certifying an SPCC plan that ensures the public that a 

facility without a spill for the past decade will remain spill free during the next. 

The fundamental and obvious flaw in EPA’s proposed rule with regard to self-certification is that it does nothing to ensure this expertise in the individuals, falsely assuming that a spill-free facility will always remain so. As I said in my oral response 

to Senate questions, this is like suggesting any individual without a license can 

safely drive or repair a car that has been accident free for ten years. I am aware 

of dozens of examples where such flawed logic has been exposed through tragedy. 

Question 2. Can you describe what the mechanism is in the existing SPCC program for the public to obtain some degree of assurance that actions are being taken 

to prevent oil spills, how the EPA’s proposed rule alters that process, and what role 

enforcement plays in that process? 

Response. The only mechanisms in place are Professional Engineering certification and the very limited SPCC enforcement functions funded by EPA. The PE 

certification is by definition a public assurance, due to the professional expertise, 

testing, and oath of a licensed Professional Engineer. While this assurance resides 

in a private sector relationship between the facility and the PE, it is founded on 
86 

the public licensure process. This is a parallel process to bar certified lawyers, to 

board certified surgeons, and to state certified teaching professionals. 

The EPA’s proposed rule undermines the process entirely for facilities storing 

1320 to 10,000 gallons. This represents the majority of farm facilities subject to the 

SPCC rule and presumably may remove most facilities in other sectors from any 

oversight in the public interest by a licensed PE. Most importantly, it replaces a 

PE certification with no publicly trusted substitute that is clearly qualified and 

dedicated to the public good. The substitute is not even a corporation or supervising 

person who must demonstrate design and review expertise; the only substitute is 

the facility itself, without regard for the individual expertise of management or potential facility deterioration with age. 

Enforcement was discussed in general during the hearing, and I recall that Mr. 

Dunne said in questioning that the EPA does fewer inspections today than they did 

in the 1980s. I believe that Senator Thune suggested that some 1,100 facilities are 

inspected each year, remarking that the chances of being audited by the IRS were 

greater than the chances of an enforcement inspection of a regulated SPCC facility. 

If the proposed rulemaking removes the PE certification requirement, then increased EPA enforcement would be required to compensate or the public and environment will be at even greater risk. This will increase the public costs of EPA enforcement, require additional federal budget, and shift what is currently a cooperative and privately internalized cost of PE certification to an adversarial and taxpayer burden for federal agencies. 

Question 3. What effect does the EPA’s proposed rule have on the basic principle 

of ‘‘polluter pays’’ as it applies to oil spill prevention and clean-up? 

Response. I am not sure that the proposed rule changes the basic ‘‘polluter pays’’ 

principle, because current and proposed SPCC regulations do not relieve a facility 

of the cost of responding to and mitigating damage from an oil spill. However, the 

proposed rule clearly shifts the requirement that a facility fully prepare plans to 

prevent spills, to contain them within a facility, and to prepare the best countermeasures to minimize impacts of a spill. In fact, these proposed rule changes could 

less effectively avoid higher costs to a polluter of an unplanned or poorly planned 

spill response. 

Question 4. Do you believe the EPA’s proposal would create an incentive for larger 

facility managers to disperse their oil storage facilities and potentially create more 

risk for spills? 

Response. I hope that the operating efficiencies of current oil storage facilities 

would make such a perverse calculus economically infeasible for most industries. 

However, there is no mechanism to prevent facilities from working to classify facilities in discrete terms that enable the wider dispersion of oil storage in units less 

than 10,000 gallons each. In fact, I am not sure that any study has ever evaluated 

whether the upward shift to a 1,320 lower threshold created more locations with 

small tanks in some or many sectors; it could be that we could already observe such 

behavior on a smaller scale. In my experience, larger military installations chose to 

consider all oil stored with their boundaries in aggregate to determine whether a 

plan was required. These proposed rule changes would certainly encourage a reconsideration of storage volumes near 10,000 gallons, and could result in more facilities 

storing oil to avoid meeting the 10,000 gallon threshold. For example, a farm with 

cropland on two sides of a public road may try to designate each orchard, field, or 

vineyard as a separate facility; this would expose more of our fertile land, irrigation 

systems, wetlands, and waterways to the risk of spills. 

STATEMENT OF THOMAS P. DUNNE ACTING ASSISTANT ADMINISTRATOR OFFICE OF

SOLID WASTE AND EMERGENCY RESPONSE U.S. ENVIRONMENTAL PROTECTION

AGENCY

Mr. Chairman and members of the committee, I am Thomas Dunne, Acting Assistant Administrator for the Office of Solid Waste and Emergency Response at the 

Environmental Protection Agency (EPA). Thank you for inviting me to appear here 

today to discuss EPA’s Oil Spill Prevention, Control and Countermeasure (SPCC) 

program. My testimony will address issues regarding EPA’s recent efforts to streamline the SPCC requirements for a number of industry sectors, to extend the compliance dates for modification and implementation of SPCC Plans, and to provide guidance to EPA inspectors on the SPCC requirements. 
87 

BACKGROUND

The Federal Water Pollution Control Act (FWPCA) of 1970 required the President 

to issue regulations that would establish procedures, methods, equipment, and other 

requirements to prevent discharges of oil from vessels and facilities and to contain 

such discharges. The President delegated the authority to regulate non-transportation-related onshore facilities to EPA. A Memorandum of Understanding (MOU) 

between the U.S. Department of Transportation (DoT) and EPA in 1971 set out the 

definitions of transportation- and non-transportation-related facilities and Agency 

responsibilities. Among other things, this MOU identified that the regulatory authority for all oil storage and transfers of oil within a non-transportation-related facility rests with EPA. Another MOU between EPA, the U.S. Department of Interior 

(DoI), and DoT in 1994 re-delegated the responsibility to regulate certain offshore 

facilities from DoI to EPA. 

In 1973, EPA originally promulgated the SPCC regulations under the CWA. The 

regulation established spill prevention procedures, methods, and equipment requirements for non-transportation-related onshore and offshore facilities with aboveground storage capacity greater than 1,320 gallons (or greater than 660 gallons in 

a single container), or completely buried oil storage capacity greater than 42,000 

gallons. Regulated facilities were also limited to those that because of their location 

could reasonably be expected to discharge oil in harmful quantities into the navigable waters of the United States or adjoining shorelines. The fundamental requirement established by this rule that has not changed in nearly 30 years is that facilities covered by these regulations are required to prepare an SPCC Plan and that 

Plan must be certified by a licensed Professional Engineer (PE). 

Since the original regulations were promulgated, EPA has proposed amendments 

to the SPCC requirements a number of times to reduce reporting burdens and to 

clarify certain requirements, to make technical modifications, and to add elements 

like a response plan requirement for facilities without secondary containment, updated integrity testing requirements, prevention training, and an evaluation of tank 

brittle fracture conditions (brittle fracture is a metallurgical term for tank side wall 

failure under certain conditions). Some of these proposed amendments were driven 

by the catastrophic storage tank failure at the Ashland Oil facility in Pennsylvania 

and a subsequent task force and GAO report in which recommendations were presented to EPA to improve oil spill prevention. 

In 2002, EPA published final amendments to the original SPCC regulations. 

These amendments included a number of relief and clarification provisions, such as 

raising the threshold quantity for applicability, increasing the de minimus container 

size, exempting certain underground storage tanks, offering the flexibility of the environmental equivalence option, and introducing a flexible SPCC Plan format. New 

provisions included certain tank integrity testing requirements and brittle facture 

evaluation considerations. 

After publication of this rule in 2002, several members of the regulated community filed legal challenges to certain aspects of the rule. All of the issues raised in 

the litigation have been settled except the definition of navigable waters (this issue 

is currently before the U.S. District Court for the District of Columbia). The Agency 

published in the Federal Register the results of the settlement discussions; the results also are included as an attachment to my testimony. 

Since then, EPA has extended the dates for revising and implementing SPCC 

Plans several times primarily to provide the regulated community with sufficient 

time to understand the 2002 revised rule and clarifications that resulted from the 

litigation. EPA has made a dedicated effort to listen to the concerns of the regulated 

community and to take action to address these concerns while at the same time 

maintaining protection of public health and the environment by preventing the discharge of oil to navigable waters. 

WHY DO WE CARE ABOUT OIL SPILLS?

EPA has information from the National Response Center database that shows 

that from 1980 to 2001 thousands of oil-related spills occurred annually into inland 

navigable waters. These spills result in considerable environmental, response and 

socio-economic costs. As you know, oil spills contaminate drinking water, impact 

fisheries, agriculture, tourism and recreation, cause natural resource damage, and 

harm wildlife. EPA believes that the SPCC program is working, with oil spills from 

regulated facilities decreasing even though oil consumption has increased. 

It costs far less to take reasonable steps to prevent an oil spill than it does to 

clean it up. And, as demonstrated in the actions described below, EPA has worked 

to establish flexible and appropriate oil spill prevention requirements for the wide 

variety of industries and facilities that produce, store, or use oils. These proposed 
88 

actions to tailor the SPCC requirements are an effort to improve compliance with 

the oil spill prevention rules, which EPA believes will lead to increased oil spill prevention and protection of the Nation’s water resources from the threats posed by oil 

spills. 

ACTIONS BY EPA ON SPCC

Following settlement of the litigation, EPA met with trade associations and other 

members of the regulated community who raised concerns about various provisions 

in the SPCC requirements. It is well known that the SPCC requirements apply to 

a significant number of industry sectors and that ‘‘performance-based’’ requirements 

are much preferred to ‘‘command and control’’ or ‘‘one-size-fits-all’’ approaches. The 

SPCC requirements are designed to be performance based, offering a range of flexibility so that appropriate requirements can be tailored to particular industry sectors. Despite our past efforts in this regard, we acknowledged and welcomed opportunities to meet with the regulated community to discuss their particular issues and 

to consider whether additional modifications or clarifications of the rule requirements were necessary. The remainder of my testimony will generally describe the 

input we received and how we are responding to those concerns. 

EXTENSION OF COMPLIANCE DATES

EPA has issued a proposed rule to extend the dates by which facilities will need 

to amend and implement an SPCC Plan to October 31, 2007. EPA is taking this 

action to allow time for the Agency to finalize amendments to the SPCC requirements that were recently proposed (and which I will describe below). We also want 

to provide sufficient time for facilities to understand these modifications, to review 

and understand the guidance we recently issued, and to make appropriate changes 

to their facilities and to their SPCC Plans as a result of the rule modifications and 

the guidance. Finally, the Agency is concerned that the effects of the recent hurricanes on many industry sectors might adversely impact their ability to meet the upcoming compliance dates if no extension is provided. 

SMALL BUSINESS

EPA has participated in several Small Business Administration (SBA) Roundtable 

Meetings to hear feedback from not only SBA but also from a variety of industry 

sectors such as the food, construction, electric utility, aviation, and automotive industry. As a result of these meetings, EPA embarked on an effort to streamline, 

focus, and clarify the SPCC requirements and to provide guidance to EPA inspectors 

to illustrate the flexibility built in to the regulations. In the fall of 2004, EPA published two Notices of Data Availability (NODAs). The first NODA made available 

and solicited comments on submissions to EPA suggesting more focused and streamlined requirements for facilities subject to the SPCC rule that handle oil below a 

certain threshold amount of oil. The second NODA made available and solicited 

comments on whether alternate regulatory requirements would be appropriate for 

facilities with oil-filled and process equipment. Comments submitted on these 

NODAs informed our development of the recent proposed rule to modify the SPCC 

requirements. 

As a result of the Roundtable sessions and comments on the NODAs, we learned 

that the major concern for small businesses is the requirement for certification of 

SPCC Plans by a licensed Professional Engineer (PE). Consequently, after consideration of options, we developed the approach in the proposed rule that would provide 

small facilities (those handling less than 10,000 gallons of oil) the option to self-certify their plans. In addition, we are proposing additional flexibility for these smaller 

facilities with respect to tank integrity inspections and facility security. 

AIRPORTS

In meetings with, and correspondence from, airport trade association representatives and an airport coalition, EPA learned about the concerns of airport facility operators with the SPCC requirements and Federal Aviation Administration (FAA) 

standards for airport mobile refuelers. The 1971 MOU with DoT vests regulatory 

authority for all oil storage and transfers of oil within a non-transportation-related 

facility with EPA. We recognize the unique circumstances regarding these mobile 

refueling vehicles and the difficulty associated with providing sized secondary containment while the vehicle is moving, engaged in transferring fuel, or parked. Given 

these unique circumstances, EPA agrees that airport owners and operators should 

have greater flexibility in fuel spill prevention and has proposed to modify the regulations to make airport mobile refuelers subject to the general secondary contain-
89 

ment requirements, rather than the sized secondary containment requirements. 

EPA believes the general secondary containment requirements are more flexible and 

reflect the kinds of active and passive fuel spill prevention measures already used 

by many airports in their fueling operations. 

For example, some large airports have elaborate drainage systems that can capture runoff from all paved areas. The runoff is contained and measures are taken 

to ensure that any oil or fuel that might be contained in this runoff is separated 

from water before the runoff is discharged to a waterway. This is a reasonable approach to oil spill prevention and it satisfies the requirements of the SPCC regulations. For smaller airports that may not have such a system, under the general containment requirements the airport owner and operator would determine the likely 

amount of fuel that could be spilled from the mobile refueler, where it would spill 

from and when (e.g., a leak from a hose), and institute appropriate active or passive 

measures and response capability (such as diversions or absorbent materials) to ensure that the fuel does not get discharged to a waterway. 

AGRICULTURE

Through the SBA Roundtables and in separate meetings and correspondence with 

agricultural representatives and the U.S. Department of Agriculture (USDA), EPA 

has learned of the concerns of farmers with respect to compliance with the SPCC 

requirements. EPA recognizes that the number of farms covered by the SPCC regulations is significant and that the unique characteristics of farms pose unique challenges to SPCC compliance. Consequently, EPA is taking several steps: initially, 

farmers will have the option to take advantage of the flexibility offered by the small 

facility proposal and the exemption for motive power described below. Further, EPA 

is proposing to extend the 2002 rule compliance dates for all facilities including 

farms until October 31, 2007; and to extend the 2002 rule compliance dates indefinitely for farms storing 10,000 gallons of oil or less. Finally, EPA has committed 

to work with USDA and farm representatives to determine how to properly address 

farms under the SPCC regulation. 

EDIBLE OILS

EPA has also met with and received correspondence from the food industry regarding animal fats and vegetable oils (AFVO) and the SPCC requirements. This 

sector has long maintained that food oils are not the same as petroleum oils and 

therefore should have different regulatory requirements that reflect these technical 

differences. Indeed, the Edible Oil Regulatory Reform Act (EORRA) of 1995 required 

most Federal agencies to differentiate between, and establish separate classes for, 

various types of oil, specifically, between animal fats and oils and greases, and fish 

and marine mammal oils and oils of vegetable origin, including oils from seeds, 

nuts, and kernels; and other oils and greases, including petroleum. In our current 

proposal, EPA is requesting input on whether specific provisions in the SPCC requirements need to be modified to account for differences between AFVO and petroleum oils. 

EPA has previously reviewed this issue and determined that many animal fats 

and vegetable oils can be harmful to the environment. Although we might enjoy consuming various food oils in small amounts, a large spill of oil into a waterway could 

contaminate drinking water supplies and cause oxygen depletion, fish kills and 

other aquatic impacts. At the same time, EPA does recognize that there are some 

requirements in the SPCC rules that are not appropriate for AFVO—for example, 

the requirements for onshore oil production facilities—and we are proposing to remove those requirements. 

ELECTRICAL UTILITIES AND OTHER OIL FILLED EQUIPMENT USERS

Regarding the oil-filled operational equipment issue, EPA met with and received 

correspondence from several stakeholders about the SPCC requirements and the nature of oil-filled operational equipment in comparison to other bulk oil storage containers. Oil-filled operational equipment includes transformers, hydraulic equipment 

and lubrication systems. In light of these issues raised and the unique nature of this 

kind of equipment, EPA is offering in the current proposal a streamlined regulatory 

option. A facility owner or operator can choose to satisfy the SPCC requirements 

through inspection and monitoring systems and contingency planning rather than 

through general containment requirements. In doing so, the proposal provides the 

electrical utilities and other industrial facilities with an additional prevention option 

for this unique equipment. 
90 

MOTIVE POWER

In contrast to the airport mobile refuelers described above, a ‘‘motive power container’’ is an integral part of a motor vehicle (including aircraft) that provides fuel 

for propulsion or some other operational function, such as lubrication of moving 

parts or for operation of onboard hydraulic equipment. Motive power containers on 

vehicles used solely at non-transportation-related facilities fall under EPA jurisdiction and are subject to the SPCC regulation. The types of vehicles and facilities that 

are potentially subject to the SPCC requirements solely because of the oil contained 

on-board the vehicles are: buses at terminals or depots; recreational and some sport 

utility vehicles parked at dealerships; heavy earthmoving vehicles at construction 

sites; aircraft; and large farming and mining equipment. EPA recognizes that, in 

most cases, the SPCC requirements are not practical for motive power containers 

on-board these types of vehicles at SPCC regulated facilities. Consequently, EPA is 

proposing to exempt them from coverage under the rule. However, transfers between bulk storage containers and these vehicles remain subject to the SPCC requirements. 

OIL EXPLORATION AND PRODUCTION

The oil exploration and production industry has raised concerns about the SPCC 

requirements. Such concerns include requirements applicable to produced water, the 

costs and practicality of certain compliance requirements (particularly those related 

to secondary containment), and potential impacts on the Nation’s marginal wells. 

Although our current proposal was originally intended to address only certain targeted areas of SPCC requirements, EPA is working to identify additional areas 

where regulatory reform may be appropriate. For these additional areas, the Agency 

expects to issue a proposed rule in 2007. In the current proposal, EPA requests comments from stakeholders on the scope of potential future rulemakings. Additionally, 

EPA in conjunction with the Department of Energy will be conducting an energy 

impact analysis of the SPCC requirements, and will consider the results of this 

analysis to inform any future rulemaking. 

While EPA is not taking any specific action with respect to the oil exploration and 

production industry at the present time, this sector can take advantage of the small 

facility and oil-filled operational equipment flexibility offered by EPA’s proposed rule 

and can examine the additional flexibility offered by other provisions as described 

in the SPCC guidance described below. EPA is willing to work with this sector to 

determine whether other appropriate requirements exist to increase compliance and 

thereby reduce the amount of oil lost to water. 

GUIDANCE

Finally, EPA has issued the SPCC Guidance for Regional Inspectors. This guidance is intended to assist regional inspectors in reviewing a facility’s implementation of the current SPCC rule. The document is designed to foster a better understanding of how the rule applies to various kinds of facilities and to help clarify the 

role of the inspector in the review and evaluation of the performance-based SPCC 

requirements. Another reason for the guidance is to respond to stakeholder requests 

for consistent national policy on several SPCC-related issues. 

The guidance is available on our website both to owners and operators of facilities 

that may be subject to the requirements of the SPCC rule and to the general public. 

EPA welcomes comments on this guidance; it is a living document and will be revised, as necessary, to reflect any relevant future regulatory amendments. EPA believes it is important for all stakeholders to review, understand and make use of 

this guidance. The guidance should clarify many of the recent issues raised by the 

regulated community. 

C0NCLUSION

EPA has made a concerted effort to address the concerns of various sectors of the 

regulated community regarding the SPCC regulations while maintaining an environmentally protective SPCC program. In fact, EPA estimates that, overall, the proposed amendments would reduce annual compliance costs by $98 million. EPA estimates that the proposed rule would lower compliance costs by $24 million for facilities with less than 10,000 gallons of oil storage capacity. The most important consideration, however, is that EPA is working to make compliance easier thereby leading 

to greater oil spill prevention and protection of public health and the environment. 
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RESPONSES BY THOMAS P. DUNNE TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. Can you please clarify for the committee which farms are covered by 

the indefinite compliance extension proposed in the December 2005 rule? Does it 

apply to only those farms that are in full compliance with the 1973 regulation and 

that have less than 10,000 gallons storage capacity? 

Response. The proposed indefinite compliance date extension for farms would 

apply to farms that have a total oil storage capacity of 10,000 gallons or less as follows: 

• a farm that was in operation on or before August 16, 2002, would have to maintain its Spill Prevention, Control and Countermeasure (SPCC) Plan during the indefinite extension, but would not be required to amend that Plan in accordance with 

the 2002 revisions until a new compliance date is established; 

• a farm that came into operation after August 16, 2002 would not be required 

to have a Plan during the indefinite extension until a new compliance date is established. 

[Note that the Agency has extended the compliance date before (i.e., January 9, 

2003 (68 FR1348), April 17, 2003 (68 FR 18890) and August 11, 2004 (69 FR 48794)) 

and has just extended the compliance date again until October 31, 2007. In all of 

these instances, facilities, including farms that were in operation on or before August 16, 2002, were required to maintain their SPCC Plan.] 

Question 2. In the cost analysis for the 2002 rule, EPA argues that its change 

from ‘‘should’’ in the rule to ‘‘shall’’ does not constitute regulatory requirements and 

therefore had no cost impact on the proposal. EPA argued that ‘should’ always 

meant that the actions were requirements not recommendations. However, in a 

1989 GAO report, EPA attorneys and program officials stated that they considered 

these provisions guidelines or recommendations-not requirements. Further in the 

Oil Spill Task Force’s 1988 report one of its recommendations is that the ‘‘shoulds’’ 

be changed to ‘‘shalls’’ because ‘‘these changes to the regulations will require certain 

practices rather than only encouraging them.’’ 

How do you account for the obvious discrepancy between statements of the attorneys working on the program in 1989 and the Agency’s contention in 2002 that 

many of these provisions were always requirements? If in fact there was any doubt 

as to whether or not these provisions were required, should EPA have considered 

that uncertainty in the 2002 cost analysis? 

Response. Since EPA’s SPCC regulation was promulgated in December 1973, an 

owner and operator of a facility has always been required to have an SPCC Plan 

that was certified by a Professional Engineer as adhering to good engineering practices (see 40 CFR §112.3(a-d)(1973-2002); 40 CFR §112.3(a-d)(2003-2005)). See, for 

example, 38 FR 34165-34166 (December 11, 1973) where it states, 

‘‘112.3(a) Owners or operators of onshore and offshore facilities in operation on or 

before the effective date of this part that have discharged or could reasonably be 

expected to discharge oil in harmful quantities, as defined in 40 CFR Part 110, into 

or upon the navigable waters of the United States or adjoining shorelines, shall prepare a Spill Prevention Control and Countermeasure Plan (hereafter ‘‘SPCC Plan′′), 

in accordance with §112.7. Except as provided for in paragraph (f) of this section, 

such SPCC Plan shall be prepared within 6 months after the effective date of this 

part and shall be fully implemented as soon as possible, but not later than one year 

after the effective date of this part—(d) No SPCC Plan shall be effective to satisfy 

the requirements of this part unless it has been reviewed by a Registered Professional Engineer and certified to by such Professional Engineer. By means of this certification, the engineer, having examined the facility and being familiar with the 

provisions of this part, shall attest that the SPCC Plan has been prepared in accordance with good engineering practices. Such certification shall in no way relieve the 

owner or operator of an onshore or offshore facility of his duty to prepare and fully 

implement such Plan in accordance with §112.7, as required by paragraph (a), (b) 

and (c) of this section.’’ (emphasis added) EPA’s position consistently has been that 

the regulation imposes a mandatory requirement to have an SPCC plan, recognizing 

that the regulation also contains some appropriate flexibility as to the actual contents of that plan. The United States has taken that position in litigation when the 

regulatory requirement to have an SPCC Plan was unsuccessfully challenged in 

Federal court. See United States v. Texaco Exploration & Production, Inc., et al., 

Case Nos. 2:98-CV-0213S & 2:98-CV-0220S (D. Utah May 26, 1999)(Mobil Oil tried 

to dismiss a Federal enforcement case involving this issue). The judge in this case 

stated: 
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‘‘Mobil also asks this court to dismiss the Government’s claim for violation of 40 

C.F.R. §112.7 because that section sets forth only discretionary ‘guidelines’ that 

‘should’ be included in SPCC plans— 

‘‘The Government explains that its claim is actually brought under §112.3(b) 

which is a mandatory provision. It states that the owner or operator of an onshore 

facility ‘shall’ prepare an SPCC plan in accordance with §112.7 and that each plan 

‘shall be a carefully thought out plan’ which ‘shall follow the sequence—and include 

a discussion of the facility’s conformance with the appropriate guidelines.’ Section 

112.3(b)—— 

‘‘The defendant’s motions to dismiss are therefore denied.’’ 

EPA understood, however, that the 1973 regulations’ efforts to provide owners 

and operators with maximum discretion in meeting the requirements of Section 

112.3 had unfortunately led a number of owners and operators to mistakenly view 

every spill prevention responsibility in Section 112.7 as voluntary. This was noted 

by the Oil Spill Task Force 1988 Report’s finding that ‘‘Compliance with many aspects of the SPCC regulations is currently performed on a discretionary basis.’’ Nevertheless, as the Mobil court understood in 1999, even discretion has its limits, and 

the limits imposed by the 1973 regulations were expressed in 40 CFR §112.3. 

Owners and operators, no matter how they handled many specific details, needed 

an SPCC plan that was certified by a Professional Engineer that met the requirements of Part 112 by effectively, preventing oil spills through the use of good engineering practices in all relevant aspects. 

To resolve the potential for misunderstanding, EPA changed ‘‘shoulds’’ in 40 CFR 

112.7 to ‘‘musts’’ in the 2002 SPCC regulatory amendments, noting that ‘‘we have 

always interpreted and enforced our rules as mandatory requirements’’ (see 67 Federal Register 47052, July 17, 2002). 

At the same time that EPA made this change, it also explicitly permitted Professional Engineers to make ‘‘environmental equivalence’’ demonstrations for all but 

secondary containment requirements (40 CFR §112.7(a)(2)). Any owner or operator, 

before or after August 2002, could satisfy the ultimate requirements of 40 CFR 

§112.3 by either following the various listed relevant provisions of 40 CFR part 112, 

or by adopting another ‘‘environmental equivalent’’ measure where allowed by the 

rule. There was no increase in regulatory burden by this 2002 change, only a more 

clearly written rule. 

Question 3. Can you also detail the history of the wastewater treatment exemption including any documentation with regard to produced water and the wastewater treatment exemption? 

Response. The wastewater treatment exemption was not promulgated until July 

2002 and is based on a comment from General Motors (submitted to an SPCC rule 

making proposal published in October, 1991). GM suggested that ‘‘§112.1 exceptions 

should be expanded to include facility storage and treatment tanks associated with 

‘non-contact cooling water systems’ and/or ‘stormwater retention and treatment systems.’’’ The commenter said that the concentration of oil in the 

water ‘‘would be insignificant.’’ The commenter believed that the ‘‘cost to contain 

these structures could be better spent on other SPCC regulatory requirements.’’ 

Pursuant to the 2002 rulemaking, EPA agreed that certain wastewater treatment 

facilities or parts thereof should be exempted from the rule, if used exclusively for 

wastewater treatment and not used to meet any other requirement of part 112. 

Typically, a wastewater treatment plant treats large quantities of water contaminated with very small or insignificant quantities of oil. Conversely, produced water 

may contain significantly greater quantities of oil than in wastewater. Therefore, 

EPA did not consider treatment facilities or parts there of that treat produced water 

at an oil production, oil recovery, or oil recycling facility to be wastewater treatment 

for purposes of the rule. In the preamble of the 2002 rule, EPA explained why the 

wastewater treatment exemption does not include oil production, oil recovery or oil 

recycling facilities. ‘‘These facilities generally lack NPDES or state-equivalent permits and thus lack the protections that such permits provide. 

Production facilities are normally unmanned and therefore lack constant human 

oversight and inspection. Produced water generated by the production process normally contains saline water as a contaminant in the oil, which might aggravate environmental conditions in addition to the toxicity of the oil in the case of a discharge.’’ (67 FR 47068) EPA’s rationale in promulgating the 2002 rule was that the 

goal of an oil production, oil recovery, or oil recycling facility is to maximize the production or recovery of oil, while eliminating impurities in the oil, including water, 

whereas the goal of a wastewater treatment facility is to purify water for discharge 

back into the environment. Neither an oil production facility, nor an oil recovery or 

oil recycling facility treats water; instead they treat oil. 
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For purposes of this exemption, produced water was not considered wastewater 

and treatment of produced water was not considered wastewater treatment. The 

EPA requires containment around oil and gas process vessels. For fired vessels such 

as heater-treaters, this can present a serious safety hazard, and containment is impractical for pressurized vessels. EPA’s rules are inconsistent in regards to process/ 

operating equipment among the different industrial sectors. At non-exploration and 

production sites, it is excluded from the definition of bulk storage containers, whereas at E&P facilities, this type of equipment is considered bulk storage containers 

and subject to secondary containment requirements. The purpose of oil and gas 

process equipment such as heater treaters is to process oil/water mixtures, and is 

not used as a storage container. Why does EPA treat oil and gas process equipment 

differently and what data does EPA have to support this action? 

Response. Since the SPCC rule was promulgated in 1973, separation and treating 

facility installations (also referred to as tank battery and central treating plant installations) at production facilities have been required to have secondary containment in accordance with the bulk storage container provisions for production facilities. Separation and treating facility installations include heater-treaters, gun barrels and other types of oil/water separators. 

EPA has always viewed, production facilities as unique from other oil handling 

and processing facilities in that they are continuously operating, may generate a 

constant flow of oil, are normally unmanned, and lack regular human oversight and 

inspection to prevent spills. At other types of SPCC-regulated industrial facilities, 

the oil-filled manufacturing equipment is subject to the general secondary containment requirements of the rule. 

Even though production facilities are treated differently, the July 2002 rule does 

provide flexibility in the type and design of secondary containment and allows for 

the use of, for example, drainage systems to prevent oil discharges from becoming 

a safety hazard. Finally, a facility may determine that secondary containment for 

these bulk storage containers is impracticable and may choose to comply with the 

requirements of §112.7(d) in lieu of secondary containment. The Plan must clearly 

must clearly explain why such measures are not practicable; for bulk storage containers, conduct both periodic integrity testing of the containers and periodic integrity and leak testing of the valves and piping; and, unless the facility has submitted 

a response plan under 40 CFR 112.20, provide in the SPCC Plan the following: 

(1) An oil spill contingency plan following the provisions of 40 CFR Part 109; 

(2) A written commitment of man power, equipment, and materials required to 

expeditiously control and remove any quantity of oil discharged that may be harmful. 

Question 4. In the preamble to the rule EPA states that ‘‘there are factors concerning the physical layout of a farm that make this sector unique within the universe of SPCC-regulated facilities. For example, farms vary considerably in design 

and size—Further, the environment in which farms operate varies considerably 

from other industries. Farmers often own and/or farm lands that are non-continuous 

and may be separated by roads and other obstacles. Oil is generally not centrally 

stored and oil containers may be widely dispersed.’’ The Agency goes on to list several other issues that affect farms and justify the extension of the compliance dates 

for the 2002 rule. 

However, when the Agency finalized the 2002 rule, it argued that it would simplify compliance and provide flexibility to the regulated community. Given that EPA 

has long maintained that the 2002 rule simply clarified the requirements of the 

1973 program and made few substantive changes and in fact streamlined the process, it is illogical to then conclude that farmers cannot comply with the more 

streamlined program but can with the more complicated and onerous 1973 program. 

Can you please explain this inconsistency? 

Response. The preamble discussion cited in this question was not intended to explain why the Agency believes that farms cannot comply with the 2002 final rule 

but, rather, why the Agency is considering development of tailored or streamlined 

requirements specific to farms that store below a certain amount of oil. 

In the December 2005 notice, the Agency proposed streamlined requirements for 

‘‘qualified facilities’’ (i.e., facilities that store 10,000 gallons or less of oil and meet 

other qualifying criteria) . Those streamlined requirements also would be available 

to farms (i.e., those that store 10,000 gallons or less) that meet the qualifying criteria. However, at the time of the proposal, the Agency was not convinced that those 

particular streamlined requirements were appropriate or always necessary for farms 

that stored 10,000 gallons of oil or less. The Agency believes that such farms can 

be distinguished from other facilities that store 10,000 gallons of oil or less based 

on a number of characteristics, some of which were described in the preamble and, 
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because of those unique characteristics, requirements specific to farms maybe appropriate. The Agency, therefore, proposed to extend the compliance dates for farms 

that store 10,000 gallons of oil or less indefinitely to allow time for the Agency to 

consider streamlined requirements specific to the needs of such farms. The unique 

characteristics of farms described in the preamble would be among those the Agency 

would consider in developing such streamlined requirements. 

RESPONSES BY THOMAS P. DUNNE TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. Please explain the effect of oil in water. Include a description of the 

effect of small quantities and large quantities of oil in water on waterways, ecosystems, and aquatic life. Include a description of the effects of animal fats and oils, 

vegetable oils, etc. 

Response. When oil of any kind, including animal fats and vegetable oil (AFVO), 

is spilled into water, it may pose serious threats to fresh water and marine environments. It affects surface resources and a wide range of subsurface plants and animals that are vital to ecosystem health. 

Spilled oil can harm the environment in several ways, including the physical damages that directly impact wildlife and their habitats (such as coating birds or mammals with a layer of oil), adversely impacting water quality, and the toxicity of oil 

itself or components in the oil, which can poison exposed organisms or contaminate 

drinking water supplies. Even small quantities of oil spilled into shallow, sensitive 

water bodies such as wetlands can cause substantial harm to indigenous species. 

Petroleum and non-petroleum oils, including AFVO, share common physical properties and produce similar environmental effects. Common properties such as solubility, specific gravity,and viscosity are responsible for the similar environmental effects of petroleum and vegetable oils and animal fats. Petroleum oils and AFVO can 

enter all parts of an aquatic system and adjacent shoreline, and similar methods 

of containment, removal and cleanup are used to reduce the harm created by spills 

of petroleum oil and AFVO. For more information, please refer to the denial of a 

petition to amend the Facility Response Plan (FRP) rule published October 20, 1997 

(62 FR 54508) in which the Agency addressed several issues related to AFVO, including the petitioner’s claims that AFVO are non-toxic and biodegradable. 

Question 2. How does the Agency believe that removing the PE certification requirements for small facilities will change the likelihood of a spill? 

Response. First, it should be noted that the Agency is proposing self-certification 

by the owner and operator of its SPCC Plan as an alternative to the existing requirement. That is, a qualified facility may decide, based on facility specific circumstances, to continue to have a PE certify its Plan. However, the Agency has received numerous comments stating that smaller oil storage facilities have difficulty 

complying with the SPCC rule because of the high cost associated with the PE certification of SPCC Plans. The Agency believes that allowing the owner and operator 

of a facility to self-certify as opposed to obtaining a PE certification of its SPCC Plan 

for a qualified facility will increase options for compliance, provide flexibility, reduce 

the regulatory burden for Plan development and thus encourage owners and operators of facilities to develop and implement SPCC Plans. Further, these smaller facilities are likely to be simple and less complex and involve straight forward oil spill 

prevention practices. As a result, we expect an increase in compliance with the rule 

requirements, reducing the likelihood of a spill. 

Question 3. In response to my question during the hearing about the evolution of 

modern science as it relates to oil spills and the fact that toxic components remain 

in the environment for an extended time period, you responded that this did not 

have an impact on the EPA proposal. It seems that information regarding the severity of the impact of oil spills would be a critical piece of information in determining 

to what extent facilities should go to prevent such spills. 

Is EPA aware of the article published in Science magazine on this topic that I 

submitted for the record, and is it in fact true that the Agency did not consider this 

information when proposing changes to the SPCC rule? 

Response. The Agency has considered the impact of oil spills on the environment 

in developing its regulatory actions, and continues to review new science as it is developed. EPA is obliged to conduct cost/benefit analyses in support of regulatory actions, and there is no better way to show environmental benefits than by using the 

most recent scientific thinking that incorporates lessons learned and illustrates the 

impact of harmful oil spills. EPA is aware of the article you cite but did not specifically use the findings for development of the proposed amendments because these 

amendments are focused on tailoring and streamlining requirements to make the 
95 

SPCC regulation more effective, not at changing the basic premise that an SPCC 

Plan is warranted for facilities that handle oils to prevent spills and/or minimize 

the environmental consequences if one should occur. 

Question 4. In response to a question from Senator Murkowski, you stated that, 

‘‘The smaller airports are not going to be subject to the same secondary containment 

as a larger airport, and they are going to be able to make a decision in terms of 

what is the best way.’’ This is inconsistent with my understanding of the regulation 

proposed by EPA. In the summary of the Federal Register notice, EPA states, ‘‘The 

EPA is today proposing to amend the SPCC Plan requirements to reduce the regulatory burden for certain facilities by:—exempting airport mobile refuelers from the 

specifically sized secondary containment requirements for bulk storage containers.’’ 

In reading through the entire proposal, the EPA proposes to exempt airport mobile 

refuelers from only specifically sized secondary containment requirements. Secondary containment still applies. In addition, there is no mention of a proposal to 

exempt small airports. Does the Agency intend to exempt small airports? If so, on 

what basis and where in the EPA proposed rule is this issue addressed? In addition, 

please respond to Senator Murkowski’s question for the record—what will the effect 

be on Alaska’s very small airports—what will they have to do to comply with the 

SPCC regulations as proposed by EPA? 

Response. In the December 12, 2005 notice, EPA proposed that the general secondary containment requirements at 40 CFR Part 112.7(c) would apply to airport 

mobile refuelers versus the sized secondary containment requirements in 

§112.8(c)(2) and 112.8(c)(11)]. This proposed approach applies to all airports, regardless of size, including Alaska’s airports. The existing general secondary containment 

provisions under the SPCC rule provide considerable flexibility to an owner/operator 

as to what secondary containment option is best for the particular airport or even 

specific fueling operations and logistics at an airport. Thus, an oil spill containment 

practice at a large hub airport (e.g., large-scale drainage system with oil/water separators coupled with related storm water structures) may not be appropriate for a 

general aviation airport (e.g., attachment basin). In addition, airports, particularly 

small airports like those that maybe in Alaska, may choose to take advantage of 

the qualified facility option which would allow the airport to self-certify its SPCC 

Plan. In the hearing, Mr. Dunne wanted to communicate that airports will have 

more flexibility under the proposed approach to choose a secondary containment option more suitable and cost effective for a given airport’s size and configuration. 

Please note that we did not propose to exempt any airports from the SPCC requirements at 40 CFR 112; the proposal specifically applies to mobile refuelers at all airports that store above 1,320 gallons of oil which due to its location could reasonably 

be expected to discharge oil into or upon the navigable waters of the United States 

or adjoining shorelines, as well as other waters as described in 40 CFR 112.1(b) in 

quantities that maybe harmful. 

Question 5. I want to ask a few questions about airports and mobile refuelers. Mobile refuelers are significant sources of petroleum products. At Reagan National Airport alone, there are 18 mobile refuelers carrying up to 100,000 gallons at any one 

time. This is not a small quantity of fuel. I am concerned that the Agency appears 

to be willing to consider exempting all mobile refuelers from general secondary containment requirements if they are in compliance with National Fire Protection 

standards. How do these standards ensure that as spilled fuel is moved rapidly 

away from parked aircraft, it is not moved away from aircraft and into aquatic environments? Do these standards apply to all sizes of airports, including general aviation? 

What is the compliance mechanism of these fire protection standards, for example, 

are there third party audits or other external verification procedures? 

Response. While the proposed rule indicates that the Agency is considering whether National Fire Protection Association (NFPA) codes and standards could serve to 

prevent oil spills to the environment, EPA did not move forward with such a proposal. EPA understands that an airport could potentially satisfy both fire code requirements and prevent fuel discharges if the system is properly designed and implemented. EPA understands that the NFPA codes require that drainage systems 

be designed to carry away combustible or flammable liquids into a safely located, 

approved containment. The purpose of soliciting comment on this in the proposed 

rule is to test this hypothesis and collect information from the public and the aviation industry about the compliance mechanisms; range of applicability, and designs 

associated with fire protection and airport mobile refuelers. 

Question 6. During the hearing, you mentioned fire codes and some FAA requirements that apply to tanks as protection measures applying to fuel tanks. In the 

EPA proposal, the Agency states that: ‘‘The Agency did not propose this approach 
96 

because NFPA 407 and NFPA 415 are designed for fire protection rather than environmental protection; a properly designed drainage system that meets the intent of 

NFPA 407 and NFPA 415 might not adequately prevent fuel from being discharged 

in quantities that maybe harmful. In addition, EPA has no information on the degree of compliance with, alternatives to, or applicability of NFPA 407 and NFPA 415 

to all airport facilities.’’ Are these the fire codes you were referring to, and is the 

Agency in possession of new information obtained since the publication of your proposed rule that would lead you to believe that they would offer some level of protection from oil spills? Please describe the information you have collected, if any. If not, 

on what do you base your testimony? Does the Agency plan to collect information 

on this topic? If so, please describe the information you believe you need to make 

a determination and your acquisition plan for this data. 

Response. Yes, these are the fire codes Mr. Dunne referred to in his testimony. 

As stated in the previous question and answer, depending on the design and applicability, these codes may play a role in preventing oil spills from reaching waters 

of the United States. As stated in the proposal, we are not moving forward with an 

approach that would rely on the fire code measures as an oil spill prevention mechanism until more information is collected and understood. We expect to work with 

the Federal Aviation Administration (FAA) and to learn from public comments submitted on the proposed rule. EPA would need to know the extent that these codes 

apply to all airports and whether the design of such drainage systems meet oil spill 

prevention requirements. 

Question 7. Senator Thune asked during the hearing whether the Agency had responded to the GAO recommendation that inspection priorities for the SPCC program be established. Has the Agency established inspection priorities, and if so, 

what are they? In the hearing you stated that, ‘‘I can tell you this, Senator, we are 

not specifically going to be targeting small farmers. In fact, I will guarantee you 

that we will not be.’’ Please describe the basis for this statement and provide a copy 

of any correspondence or documentation that you have exchanged with OECA to establish this policy. 

Response. EPA typically uses the following factors/resources to target facilities for 

SPCC inspections: 

-Quantity of oil stored 

-Geographic location, proximity to sensitive environments and water bodies 

-State, Federal and local referrals, public complaints, and counties with high spill 

histories 

-State permit databases 

-Age of infrastructure 

-Industry sector 

EPA Regional Offices include input from State and local authorities on inspection 

priorities and target inspections in response to spill or complaint referrals. Regions 

routinely receive informationn from state and local authorities about facilities that 

should be targeted for inspections. When EPA conducts Facility Response Plan 

(FRP) inspections at high volume storage facilities, we will often conduct an SPCC 

inspection. EPA headquarters and Regional oil program staff coordinate regularly 

on inspection priorities and program implementation. 

With regard to SPCC inspections of farms, EPA has informed the public and the 

regulated community that it intends to address concerns raised by the farming sector about the SPCC requirements and consider further differentiation of requirements for farms during the proposed indefinite extension. Because there is such a 

large number and a wide variety of industrial facilities subject to the SPCC requirements that handle oil in storage capacities greater than 110,000 gallons, in light of 

the factors noted above for targeting facilities for inspection, a farm inspection is 

typically a very low priority. In addition, EPA believes that the farm sector will 

needd the time provided by the extension to better take advantage of the guidance 

recently published and any further amendments that are promulgated as a result 

of the recent proposed amendments. 

Question 8. Please explain the agriculture exemption in the EPA proposal. Does 

it apply to all farms for all requirements of the SPCC program or only those requirements that would have been added by the 2002 rule and the 2005 proposed rule? 

Response. The Agency did not propose an exemption for agricultural facilities; 

rather we proposed an indefinite compliance date extension for certain farms. The 

proposed extension for farms would affect those farms that have a total oil storage 

capacity of 10,000 gallons or less as follows: 

a farm that was in operation on or before August 16, 2002, would have to maintain its SPCC Plan (as required by the 1973 regulation) during the indefinite extension, but would not be required to amend that Plan according to the 2002 rule until 
97 

a new compliance date is established; for farms that came into operation after August 16, 2002, they would not be required to have a Plan according to the 2002 rule 

and the 2005 proposed modifications until a new compliance date is established 

Question 9. Regarding the indefinite exemption of agriculture sites from the requirements of the rule. Farms that meet the size requirements, having an equivalent of 24, 55 gallon drums onsite, have been required to have a spill prevention 

plan in place for close to 35 years. In Dr. Corbett’s testimony, he points out that 

agriculture uses almost the same percentage of petroleum as the commercial sector. 

What analysis have you conducted to justify this change and what were your findings? 

Response. As noted above, the indefinite extension applies to certain farms as defined in the proposed rule, not to all agricultural facilities. EPA believes that farms 

with a total oil storage capacity of 10,000 gallons or less, as described in the proposed rule, have unique characteristics that distinguish them from other agriculture, food oil or petroleum oil facilities. These differences are described in the 

preamble of the proposed rule (see 70 FR 73524 at 73542). 

EPA is currently working with the U.S. Department of Agriculture to gather data 

regarding possible streamlined or tailored requirements for these facilities. 

Question 10. For qualified facilities, generally those facilities with a storage capacity of 10,000 gallons or less and no discharges during the past decade, EPA’s proposal allows owner and operators to make their own security and integrity testing 

decisions without consulting with a professional engineer provided industry standards are met. Please explain why EPA limited flexibility in this way and why flexibility should not be extended for environmental equivalency and impracticability requirements. 

Response. EPA considers the proposed 10,000 gallon threshold to be a reasonable 

volume that addresses the concerns of facilities with relatively smaller volumes of 

oil at simpler, less complex facilities, while balancing the public health and welfare 

given the potential for environmental damage for a spill of that magnitude. EPA believes that in general, without the advantage of the expertise and knowledge that 

a Professional Engineer (PE) brings to the development of an SPCC Plan, deviations 

based on environmental equivalence and contingency measures in lieu of secondary 

containment may not be adequate or appropriate. Because we have not extended 

these performance-based provisions to qualified facilities, EPA is proposing that 

qualified facilities have additional flexibility in the security and tank integrity testing provisions. EPA believes that qualified facilities, because of their smaller oil 

storage quantity and likely simpler operations, should be provided with a stream 

lined set of basic security measures and integrity testing requirements. The flexibility in these proposed exceptions would be analogous to the flexibility provided 

under the environmental equivalence provision (§112.7(a)(2)), which allows for deviations from the security requirements (§112.7(g)) and tank integrity testing requirements (§112.8(c)(6)) that would not be available to qualified facilities because a PE 

is not certifying the Plan. 

Question 11. As a basis for proposing these changes to the SPCC requirements, 

did the EPA conduct a risk analysis that evaluated potential impacts on human 

health and the environment, and what factors did the EPA consider? 

Response. EPA did not do a classic risk assessment or risk evaluation. Instead, 

based on a qualitative potential for environmental harm, EPA determined that the 

changes we are proposing work to maintain appropriate protection while streamlining the requirements for certain facilities, equipment types, and sectors. 

Question 12. Can you explain how the provisions of 2002 rule will be enforced? 

In other words, the Agency has delayed the implementation of that rule through 

2007. Therefore, the requirements of the rule stand as published in 1973. Will the 

Agency be enforcing the current program, and, if you have an alternative approach 

in mind, can you explain the legal basis for this approach? 

Response. The Agency expects to enforce the 2002 rule, which allows owners and 

operators who have received an extension to 2007 to maintain their SPCC Plans 

that incorporate 1973 rule requirements . It should be noted that on February 10, 

2006 the EPA Administrator signed a final rule extending the compliance date by 

which all facilities must prepare or amend and then implement their SPCC Plans. 

This extension affects only requirements of the July 2002 final SPCC rule that impose new or more stringent compliance obligations than did the 1973 SPCC rule. 

Any provision in the July 2002 rule that provides regulatory relief is not affected 

by these compliance date extensions because such provisions are not ones for which 

it would be ‘‘necessary’’ to amend existing Plans ‘‘to ensure compliance with’’ the 

July 2002 amendments (see §112.3). This issue was discussed by the Agency in two 
98 

previous extension notices on April 17, 2003 (see 68 FR 18890, at 18892-3), and on 

August 11, 2004 (see 69 FR48794, at 48796). 

Question 13. What flexibility has EPA provided to qualified facilities in this proposal and how does it differ from the 2002 requirements? 

Response. The 2002 rule already provides some flexibility for owners and operators to comply with the SPCC requirements. In the December 2005 proposal, EPA 

is proposing to provide an additional option for compliance and other flexibility to 

qualified facilities. The owner/operator would have the option to self-certify the 

SPCC Plan in lieu of a review and certification by a Professional Engineer (PE). The 

cost of a PE certification has been the major concern for small businesses. In addition, facilities that qualify and choose this option have greater flexibility on oil storage area security requirements and tank integrity testing than that offered by the 

2002 rule. The 2002 rule includes specific security requirements, while the 2005 proposal asks that facility owners and operators develop their own security measures 

suitable to their situation. On tank integrity testing, the 2005 proposal allows facility owners and operators to satisfy this requirement through the use of industry 

tank inspection standards rather than the more specific requirement in the 2002 

rule. 

Ultimately the decision to use the ‘‘qualified facilities’’ option is up to the facility 

owner and operator. Some facilities may have developed plans in accordance with 

2002 amendments and may choose to maintain that plan which provides the flexibility provided by a PE certified plan. Conversely, a facility may choose to develop 

a self-certified plan, forgo the cost of PE certification because the facility operations 

are simple and the flexibility provided by a PE certified plan is not required. The 

owner and operator decision will be driven by the costs, site specific factors and the 

overall complexity of the site operation. Many smaller capacity ‘‘end users’’ of oil 

may find the ‘‘qualified facilities’’ proposal a cost effective option for compliance with 

the rule requirements. 

Question 14. The universe covered by the SPCC requirements is large and varied. 

I understand that EPA has inspected less than 2 percent of the facilities covered 

by these regulations. By allowing self-certification, how can EPA ensure adequate 

consideration has been given by a qualified professional when it comes to oil spill 

preparedness? 

Response. On average, a full SPCC inspection is conducted at about 1,100 facilities per year. In addition, EPA personnel will review SPCC and Facility Response 

Plans (FRP) and respond to hundreds of oil spills each year at a variety of other 

facilities. 

EPA’s proposal for self-certification at smaller oil storage capacity facilities with 

a demonstrated clean spill history is based on the likelihood that these facilities are 

simple and less complex than larger storage facilities. EPA also believes that the 

owner or operator of such a facility who chooses to self-certify will be competent and 

able to certify that his facility is in compliance with the SPCC requirements and 

that his Plan works to prevent oil discharges, especially since the owner or operator 

will himself have to certify to the following: (1) that he is familiar with the requirements of the SPCC rule; (2) that he has visited and examined the facility; (3) that 

the Plan has been prepared in accordance with accepted and sound industry practices and standards and with the requirements of the SPCC rule; (4) that procedures for required inspections and testing have been established; (5) that the Plan 

is being fully implemented; (6) that the facility meets the qualification criteria for 

qualified facilities; (7) that the Plan does not include any environmental equivalence 

measures or determinations of impracticability; and (8) the Plan and the individuals 

responsible for implementing the Plan have the full approval of management and 

the facility has committed the necessary resources to fully implement the Plan. In 

fact, EPA believes that this simpler approach to the SPCC requirements will trigger 

increased compliance without a PE having to certify every Plan and without EPA 

having to inspect every covered facility. 

Question 15. In 1995, the GAO found that EPA had not taken action on any of 

their recommendations for the SPCC program made in 1989. Please summarize how 

the EPA has responded to the GAO findings in their 1989 and 1995 reports? 

Response. In the conclusions section of the 1995 GAO report, GAO noted that 

‘‘EPA generally agreed with the seven recommendations in the 1989 report on the 

regulation and inspection of above ground storage tanks (ASTs), and it has taken 

some steps to implement them. In 1994, EPA partially implemented the GAO recommendation on contingency planning, and by 1996 it expects to implement three 

more recommendations (on inspection procedures and documentation, training for 

inspectors, and penalties for noncompliance). EPA is uncertain when the other three 

recommendations (on tank construction and design and on targeting inspections) 
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will be implemented.’’ Since this GAO report was issued, EPA has completed the 

following actions: 

RECOMMENDATION: ABOVE GROUND OIL STORAGE TANKS SHOULD BE BUILT AND TESTED

IN ACCORDANCE WITH INDUSTRY OR OTHER SPECIFIED STANDARDS

In response to this recommendation, EPA strengthened the Professional Engineer 

(PE) certification requirements in the SPCC rule by adding this statement: ‘‘the 

Plan has been prepared in accordance with good engineering practice, including consideration of applicable industry standards.’’ EPA also elaborated on relevant industry tank construction and inspection standards in the preamble to the 2002 SPCC 

rule. In addition, the Agency routinely coordinates with industry standards setting 

organizations in the development of relevant standards, such as the Steel Tank Institute’s (STI) SP001 Standard Revision Committee. 

RECOMMENDATION: FACILITIES SHOULD HAVE A PLAN FOR HOW TO REACT TO A SPILL

THAT OVERFLOWS THEIR BOUNDARIES. 

The Facility Response Plan (FRP) rule, issued in July 1994 and amended in June 

2000, requires facility owners and operators to prepare plans for responding to a 

worst-case discharge of oil and to a substantial threat of such a discharge, as well 

as small and medium discharges of oil. The FRP rule also requires facility owners 

and operators to have a program of response drills and exercises that follows the 

National Preparedness for Response Exercise Program (PREP). The general requirements for an SPCC Plan were amended in 2002 to require certain spill response and 

reporting planning requirements. 

RECOMMENDATION: STORM WATER DRAINAGE SYSTEMS SHOULD BE DESIGNED AND

OPERATED TO PREVENT OIL FROM ESCAPING. 

In the 2002 SPCC amendments, the layout of the SPCC rule was reorganized with 

specific sectionss entitled ‘‘Facility Drainage’’ in relevant subparts of the rule to 

highlight the need to prevent oil discharges from storm water drainage systems. 

RECOMMENDATION: DEVELOP, IN COORDINATION WITH STATE AND LOCAL AUTHORITIES, 

A SYSTEM OF INSPECTION PRIORITIES ON THE BASIS OF A NATIONAL INVENTORY OF

TANKS. 

EPA often targets inspections in response to spills or complaint referrals. We also 

use information received from State and local authorities. EPA typically uses the 

following factors/resources to target facilities for SPCC inspections: 

-Quantity of oil stored 

-Geographic location, proximity to sensitive environments and water bodies 

-State, federal and local referrals, public complaints, and counties with high spill 

histories 

-State permit databases 

-Age of infrastructure 

-Industry sector 

RECOMMENDATION: DEVELOP INSTRUCTIONS FOR PERFORMING AND DOCUMENTING

INSPECTIONS

A national guidance for SPCC inspections was issued in December 2005 (SPCC 

Guidance for Regional Inspectors, available at www.epa.gov/oilspill) . This guidance 

includes checklists for Regional personnel to use in documenting inspections. Updated guidance for FRP coordinators and inspectors is currently being developed 

with respect to substantial harm determinations, plan review, inspections and the 

conduct/evaluation of Government-initiated unannounced exercises. 

RECOMMENDATION: DEFINE AND IMPLEMENT MINIMUM TRAINING NEEDS FOR

INSPECTORS

EPA has developed and implemented a comprehensive 40-hour program for inspector training that includes a mock facility inspection. From 1996 through 2000, 

the 40-hour training course was conducted in 8 regions, with staff from all 10 regions attending. EPA provides SPCC refresher training at the yearly On-Scene Coordinator (OSC) readiness training program. Three training refreshers on the 2002 

rule amendments have been held and we are currently updating the 40-hour course 

for delivery this year. In addition, the Agency recently completed a train-the-trainer 

program on the inspector guidance document for senior inspectors. 
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RECOMMENDATION: ESTABLISH A NATIONAL POLICY FOR FINING VIOLATORS

EPA’s Office of Enforcement and Compliance Assurance (OECA) has developed a 

national enforcement policy document. The document is available at http://epa.gov/ 

compliance/resources/policies/civil/cwa/311pen.pdf. 

Question 16. One of the outstanding elements in the litigation on the 2002 rule 

deals with the definition of navigable waters. This is an extremely controversial 

issue with broad implications for the Clean Water Act. Do you intend to address 

this issue through settlement in the lawsuit on the SPCC program filed by the 

American Petroleum Institute? 

Response. The issue of the definition of navigable waters was not included in the 

settlement agreement which EPA reached with plaintiffs who challenged the 2002 

rule. The issue is still being litigated in the U.S. District Court for the District of 

Columbia. 

Question 17. Can you describe about how many facilities you believe will receive 

regulatory relief as a result of each of the proposed changes to the SPCC rules? 

Response. EPA estimates that a total of about 618,000 facilities are currently subject to the SPCC regulations. The following provides the proposed change and our 

best estimate of the facilities that would receive regulatory relief if these proposed 

changes were adopted: 

Qualified Facility: As proposed, the qualified facility (10,000 gallons or less of oil 

storage capacity and it meets other qualification criteria) approach is optional and 

depends on circumstances at a particular facility. A facility may find that it needs 

to use a Professional Engineer (PE) for an impracticability or environmental equivalence claim in its Plan. EPA does not know how many facilities would meet the criteria and choose to take advantage of the ‘‘Qualified Facility’’ option. Therefore, EPA 

examined the impact of the ‘‘Qualified Facility’’ option under 3 scenarios: 25 percent, 

50 percent, and 75 percent of facilities would likely meet ‘‘Qualified Facility’’ status 

and decide to implement this approach. EPA estimated that 84,000 facilities would 

choose to take advantage of this option under the 25-percent scenario; 167,000 facilities under the 50-percent scenario, and 251,000 facilities under the 75 percent scenario. 

Qualified Oil-filled Operational Equipment: EPA focused its economic analysis on 

the electric utility sector for the, qualified oil-filled operational equipment option in 

the proposed rule. We recognize, however, that many more facilities outside of the 

electric utility sector with oil-filled operational equipment may choose this option. 

As above, since this is an optional approach, some facilities may choose not to take 

advantage of this flexibility. EPA estimates that the total number of new facilities 

with oil-filled operational equipment that would elect to use the flexibility in this 

approach would be approximately 2,040 in the first year. Over the next 10 years, 

approximately 2,450 new facilities are expected to be added annually on average. 

Motive Power: EPA has no empirical data on the number of facilities with motive 

power containers with oil storage of 55 gallons or greater. To estimate the number 

of facilities affected by the ‘Motive Power’ proposed rule, EPA examined 3 scenarios: 

10 percent, 25 percent,and 50 percent of the facilities in sectors likely to have motive power containers may be affected by the proposed regulatory option. EPA estimated that 29,000 facilities have ‘motive power’ oil storage under the 10 percent scenario; 72,000 facilities under the 25 percent scenario; and 143,000 facilities under 

the 50 percent scenario. 

Airport Mobile Refuelers: EPA estimated the total number of airports that will 

benefit from the proposed modification at 479 in the first year. EPA assumed one 

to three mobile refuelers per airport, or approximately two per airport on average. 

Question 18. Can you explain how and why the proposed rule differentiates between mobile vehicles that use petroleum products for propulsion or for the function 

of the equipment and mobile vehicles that carry large tanks of fuel? 

Response. The 1971 Memorandum of Understanding between EPA and the Department of Transportation (DOT) states that ‘‘highway vehicles and railroad cars 

which are used for the transport of oil exclusively within the confines of a non-transportation-related facility and which are not intended to transport oil in interstate 

or intrastate commerce’’ are considered non-transportation-related, and therefore 

fall under EPA’s regulatory jurisdiction. For example, some oil refinery tank trucks 

and fueling trucks dedicated to a particular facility (such as a construction site, 

military base, or similar large facility) fall under this category. Vehicles used to 

store oil, operating as on-site fueling vehicles at locations such as construction sites, 

military, or civilian remote operations support sites, or rail sidings are generally 

considered non-transportation-related. In a sense, the container on the vehicle is a 
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mobile oil storage tank and would be subject to SPCC requirements at a regulated 

facility. 

However, there are certain motor vehicles (including aircraft) that contain oil solely for the purpose of providing fuel for propulsion, or solely to facilitate the operation of the vehicle. The concept of ‘‘motive power’’ is not addressed in the SPCC 

regulations, but the EPA-DOTMOU in Appendix A to 40 CFR Part 112 specifically 

refers to the transportation of oil, not to transportation in the general sense. As a 

result, oil storage containers with a capacity greater than 55 gallons used for motive 

power technically fall under the SPCC rule where secondary containment and other 

SPCC requirements would apply. EPA never intended to regulate motive power containers under the SPCC rule; moreover, attempting to comply with the SPCC rules 

for motive power containers would be extremely challenging. Therefore, the Agency 

proposed to exempt motive power containers such as those on buses, sport utility 

vehicles, small construction vehicles, aircraft and farm equipment, or at facilities or 

locations such as heavy equipment dealers, commercial truck dealers, or certain 

parking lots that maybe subject to the SPCC requirements (including secondary containment, inspection, and over fill protection) solely because of the presence of motive power containers. 

Question 19. Can you explain the history of the applicability of the SPCC regulations to the aviation industry? 

Response. Since 1974 (with subsequent amendments in 2002), any facility, including an airport, with a total oil storage capacity greater than 1,320 gallons and with 

a reasonable expectation of a discharge to navigable waters and adjacent shorelines, 

must comply with the SPCC regulations. Airports, especially large facilities, are 

likely to have large stationary on site bulk storage containers of aviation fuel (an 

oil) making them subject to the SPCC requirements. In addition, many airports 

have vehicles equipped with onboard bulk storage containers that receive fuel from 

the stationary onsite bulk storage containers and subsequently transfer fuel from 

the onboard bulk storage containers to aircraft; essentially a ‘‘tank/container on 

wheels.’’ These vehicles generally carry the fuel in a large tank/container and are 

often called ‘‘mobile refuelers’’ because they provide fuel to the aircraft or other airport equipment. The mobile refuelers engage in fuel transfers to aircraft but when 

not fueling aircraft serve as a bulk storage container storing the remaining fuel 

until the next transfer occurs. EPA has always regarded these trucks as ‘‘mobile or 

portable bulk storage containers’’ subject to the SPCC requirements. 

In addition, in 1971, EPA and the Department of Transportation (DOT) jointly 

signed a Memorandum of Understanding (MOU) that vests regulatory jurisdiction 

for all oil storage and transfers within an SPCC facility with EPA, including airports and aviation facilities. An airport or other aviation facility unfamiliar with the 

MOU might conclude that because an airport is involved in transportation, it is not 

subject to the SPCC rule. However, the MOU divides jurisdiction based on the 

movement/storage of ‘‘oil’’ within and between facilities and not the act of transportation associated with aviation itself (in which ‘‘aircraft’’ move within or between facilities). As stated above, the memo, which has been included as an appendix to the 

SPCC rule since 1973, clearly outlines these principles. Thus, the activities within 

an airport related to movement and storage of oil are non-transportation and subject 

to EPA jurisdiction and the SPCC requirements. 

Question 20. What level of funding would the EPA need to annually inspect 30 

percent of the facilities subject to the SPCC program? 

Response. To inspect 30 percent of the facilities subject to the SPCC program annually (about 200,000 facilities), EPA would need an increase in funding which 

would be used partly to increase the number of trained inspectors. However, we 

would also note that while it is important for EPA to maintain an enforcement, inspection, and compliance assistance effort and presence in the field, we also believe 

it is important to establish simple, flexible regulatory requirements that encourage 

increased compliance and good prevention practices without EPA having to inspect 

every regulated facility. 

Question 21. The proposed rule states that it does not have federalism implications as defined in Executive Order 13132. However, the proposed rule would preempt State engineering licensing laws because it allows small facilities to make engineering judgments. How does EPA justify this Federal preemption of State law 

that would allow non-engineers to engage in the practice of engineering without a 

license? 

Response. In the current SPCC’ requirements, the Professional Engineer (PE) certifies that the SPCC Plan ‘‘has been prepared in accordance with good engineering 

practice, including consideration of applicable industry standards and the requirements of 40 CFR part 112; that procedures for required inspections and testing have 
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been established; and that this Plan is adequate for the facility.’’ EPA is proposing 

that the owner or operator of a qualified facility can self-certify, among other things, 

that ‘‘the Plan has been prepared in accordance with accepted and sound industry 

practices and standards.’’ This is merely a statement that the owner or operator is 

satisfied that his facility meets this requirement. A facility owner or operator may 

need to rely on licensed professional engineering services for the design and construction of equipment according to accepted and sound industry practices and 

standards. However, EPA is only proposing that the owner or operator certify that 

this requirement is met. In addition, EPA is not proposing to allow owners or operators of qualified facilities to use certain provisions (environmental equivalence and 

impracticability) because these provisions require an evaluation by a PE. Finally, 

we note that in the preamble, EPA makes clear that these rules, if adopted, would 

not pre-empt State requirements that are more stringent; see, for example, ‘‘Under 

CWA section 311(o), States may impose additional requirements, including more 

stringent requirements, relating to the prevention of oil discharges to navigable waters. EPA encourages States to supplement the Federal SPCC program and recognizes that some States have more stringent requirements. 56 FR 54612 (October 22, 

1991).’’ 

Question 22. In drafting your proposal, did EPA evaluate whether the changes for 

smaller sites creates an incentive for facility managers to disperse their oil storage 

facilities, thereby increasing the opportunities for spills, and what did you find? 

Response. While EPA did not explicitly consider the possibility that the proposal 

might lead persons to disperse facilities and thereby increase the opportunities for 

spills, an owner or operator determines the aggregate oil storage capacity at the facility to determine if he is subject to the SPCC requirements (quantity greater than 

1,320 gallons) and whether he can take advantage of the qualified facility option at 

the 10,000 gallon threshold. Consequently, it doesn’t matter if an owner or operator 

has one, 10,000 gallon tank on the facility or 5, 2,000 gallon tanks; in this case the 

aggregate oil storage capacity of the facility is 10,000 gallons. However, EPA does 

recognize that there maybe sites (e.g., farms) where tanks are located on separate, 

non-contiguous land parcels. In this case, the facility owner or operator may choose 

to document that each separate, non-contiguous parcel is a separate facility and 

only the oil storage capacity located on the single parcel needs to be aggregated. For 

example, a farm might consist of two or more separate land parcels each with its 

own 1,000 gallon oil storage tanks. In this case, the farmer could choose not to aggregate the, tank storage capacity as allowed by the SPCC definition of facility. The 

definition of facility in the SPCC rule (§112.2) provides factors an owner or operator 

may use to make this facility determination as described above. 

Question 23. Please provide a comprehensive list of the agricultural commodities 

that are included in the term, ‘‘animal fats and oils or greases.’’ 

Response. Please see the following web site for a list of the major known agricultural commodities that would be included in the term ‘‘animal fats and oils or 

greases’’: http://www.usc.miUvrtp/faq/oil.shtml (U.S. Coast Guard list of oils). 

RESPONSE BY THOMAS P. DUNNE TO AN ADDITIONAL QUESTIONS FROM SENATOR

VOINOVICH

Question 1. My farmers in Ohio have had justifiable concerns about how they are 

impacted by the Spill Prevention Control and Countermeasure program. It is important to fully and fairly clarify how entities are subject to this ruling, and I need 

to be able to explain this to my constituents. Prior to the Environment & Public 

Works hearing we just held, it was my understanding that-in general-farmers with 

fewer than 10,000 gallons of petroleum on site can take advantage of the indefinite 

extension of the deadlines. However, subsequently, it was brought to my attention 

thatsuch farmers can only take advantage of this indefinite extension if they are already in compliance with the 1973 regulations, which would essentially mean few 

farmers would be able to take advantage of this new proposal as few farmers knew 

they were subject to this rule prior to 2002. I did not believe this was the case. 

Please clarify this point for me and my constituents. 

Response. Under the proposed indefinite compliance extension, a farm with a total 

oil storage capacity of 10,000 gallons or less that was in operation on or before August 16, 2002, would need to maintain its SPCC Plan during the indefinite extension period. However, farms that came into operation after August 16, 2002 would 

not be required to develop or implement a Plan during the indefinite extension period until a new compliance date is established. 

With regard to SPCC inspections of farms, EPA has informed the public and the 

regulated community that it intends to address concerns raised by the farming sec-
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tor about the SPCC requirements and consider further differentiation of requirements for farms during the proposed indefinite extension. Because there is such a 

large number and a wide variety of industrial facilities handling quantities of oil 

greater than 10,000 gallons subject to the SPCC requirements, in light of the factors 

noted above for targeting facilities for inspection, a farm inspection is typically a 

very low priority. In addition, EPA believes that the farm sector will need the time 

provided by the extension to better take advantage of any further amendments to 

the SPCC rule that are promulgated as a result of the recent proposed amendments. 

RESPONSES BY THOMAS P. DUNNE TO ADDITIONAL QUESTIONS FROM SENATOR BAUCUS

Question 1. Does the EPA have an inspection/monitoring program to ensure regulated facilities adhere to the proposed rule? 

Response. Yes; on average, a full SPCC inspection is conducted at about 1,100 facilities per year. As we discuss in the answer to the next question and in response 

to question No. 7 under the Questions from Senator Jeffords, the Agency has various criteria in determining which facilities should be inspected/visited. In addition, 

EPA personnel will review SPCC and Facility Response Plans (FRP) and respond 

to hundreds of oil spills each year. 

Question 2. The regulated community under the SPCC rule is quite large. Does 

the EPA prioritize facilities to ensure that those large facilities, which pose the 

greatest risk to the environment, are inspected before small, family owned facilities? 

Please describe your efforts in this area. 

Response. Capacity of oil storage is certainly one factor among many that the 

Agency considers when prioritizing inspections of SPCC-regulated facilities. For example, EPA inspects facilities that are required to submit Facility Response Plans 

(FRP). These facilities (which by definition are also SPCC facilities) generally store 

greater than one million gallons of oil and meet certain applicability criteria which 

identifies that they have the potential to cause substantial harm to the environment 

by discharging oil into or on navigable waters or adjoining shorelines. In an effort 

to maximize inspection resources and travel funding, regional inspectors of 10 conduct both SPCC and FRP inspections when visiting these facilities. The Agency also 

considers other factors in determining priorities for inspections such as spill history, 

geographic location and proximity to navigable waters. [See also response to Question No. 7 from Senator Jeffords.] 
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