Physical compliance due day 1: SPCC Plan Technical Amendments have some grace period though

This week, I am resharing an article I wrote early last year and is a topic I have written about several times in the past. Interestingly enough, what should be a fairly straightforward exercise often tends to be executed incorrectly by industry. I am referring to complying with Spill Prevention, Control, and Countermeasure (SPCC) Plan technical amendments. In the past three months, I have worked with four large oil companies, a few of which are majors and I have found the following problems. Can you spot the issues?

1. Changing the roof on a tank from a floating roof to a normal fixed roof and to get a crane in a portion of the berm was removed until project work was completed.
2. Doubling the size of a tank farm and bringing tanks into service; however, to not impede construction all containment access gates left open – entire stent of project.
3. Tank constructed before berm completion, only completed on three sides, and tank being brought into service.
4. Conducting API testing on several tanks, and while contractors were onsite containment gates left opened; however, closed at the end of each day.

There is no provision in the SPCC regulations that allows you to temporarily cease to have adequate containment around active oil tanks. In the cases where gates were left open, as soon as the equipment entered the containment, the gates should have been closed. Those that had to cut into the containments themselves should have provided some equivalent temporary containment, and if not feasible, found a way to access the containment without knocking down walls. Finally, in the instances where tanks were brought into service before containment was finalized, they should have planned to have the containment done first, or as noted earlier, provided an equivalently compliant containment wall temporarily.

The bottom line, you must maintain containment at all times. Not doing so directly puts you in violation of the rule. Updating your SPCC Plan has different timelines as I have outlined below. Remember this. You must be physically compliant on day-one – meaning as soon as the oil is introduced.

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Previous Article: As I wrote about in a previous article, The Coronavirus – A Compliance Mindset, we are all facing new challenges on how to accomplish routine work requirements. For instance, maintaining regulatory facility compliance is especially challenging if you can’t be located on-site, given so much of the process relies on visual observations for data collection. The Environmental Protection Agency (EPA) has recognized this too and has suspended its enforcement of environmental laws amid coronavirus for the most part. Read more, here.

There are some silver-lining opportunities during these difficult times. Some compliance activities can be accomplished in a remote world – some of which you may not have even considered an option.

One such activity, that with proper documentation and forethought can be done remotely are Spill Prevention, Control, and Countermeasure (SPCC) Plan technical amendments. Below I’ll go into what an SPCC Plan technical amendment is, but first, let’s look at how this can be accomplished in today’s environment.

• Are these changes new, or completed a while ago? If new, push out six months (some states have more stringent timelines, i.e., Louisiana is 90 days). This is due to the fact you have six months under the EPA’s SPCC program to memorialize technical amendments in an SPCC Plan, and things may just in fact be back to normal by then (at least we pray that’s the case). If you’re coming up on the six-month mark, review the next several bullets.
• What’s the risk profile on the new additions/changes? Meaning, are they something that can be easily reviewed through photos or other documents, or due to size, would require a more thorough investigation?
• If it’s low risk, work on acquiring a package of support elements, so a Professional Engineer (P.E.) would be comfortable sealing remotely. Low-risk occurrences generally are regulated equipment installations, equipment/tank removals, new strapping numbers, change in products, permanently closing a tank, small portable container installations, small containment additions, changes in inspection protocols, and other similar occurrences.
• What data to collect?

o  Photos of the new item – all sides

o  Purchase receipts and design specifications as applicable

o  Field measurements by essential personnel left onsite – along with pictures of the area

o  Photos of where an old item was to prove gone and disposal receipts

o  Obtain a process or project description with ample supporting details

• High-risk items, such as large earth containment projects, large field-erected tank projects, and facility expansions in today’s world will have to be addressed case-by-case. As mentioned above, EPA has provided some guidance on dealing with compliance concerns during the Coronavirus. If unable to send personnel, you should amend the plan as much as possible, and also make a note that the plan will be finalized and sealed accordingly once “stay at home” measures are lifted. Again, the key is to work the process as much as possible and make appropriate notes on why items are being delayed.

SPCC Plan Technical Amendments

The SPCC Plan regulation is an interesting one given it requires a P.E. endorsement and not many rules have this requirement. Subsequently, any changes to an SPCC Plan that are governed under the P.E. seal of endorsement must be reevaluated and resealed by a P.E. The question of “What is governed by a P.E. seal?” is where operators sometimes get confused.

Let’s check out what the rule says.

 §112.5 Amendment of Spill Prevention, Control, and Countermeasure Plan by owners or operators.

If you are the owner or operator of a facility subject to this part, you must:

(a) Amend the SPCC Plan for your facility in accordance with the general requirements in §112.7, and with any specific section of this part applicable to your facility, when there is a change in the facility design, construction, operation, or maintenance that materially affects its potential for a discharge as described in §112.1(b). Examples of changes that may require amendment of the Plan include, but are not limited to: commissioning or decommissioning containers; replacement, reconstruction, or movement of containers; reconstruction, replacement, or installation of piping systems; construction or demolition that might alter secondary containment structures; changes of product or service; or revision of standard operation or maintenance procedures at a facility. An amendment made under this section must be prepared within six months, and implemented as soon as possible, but not later than six months following preparation of the amendment.

(b) Notwithstanding compliance with paragraph (a) of this section, complete a review and evaluation of the SPCC Plan at least once every five years from the date your facility becomes subject to this part; or, if your facility was in operation on or before August 16, 2002, five years from the date your last review was required under this part. As a result of this review and evaluation, you must amend your SPCC Plan within six months of the review to include more effective prevention and control technology if the technology has been field-proven at the time of the review and will significantly reduce the likelihood of a discharge as described in §112.1(b) from the facility. You must implement any amendment as soon as possible, but not later than six months following preparation of any amendment. You must document your completion of the review and evaluation, and must sign a statement as to whether you will amend the Plan, either at the beginning or end of the Plan or in a log or an appendix to the Plan. The following words will suffice, “I have completed review and evaluation of the SPCC Plan for (name of facility) on (date), and will (will not) amend the Plan as a result.”.

One note, the timing of when these must be completed can vary by state. some states like Louisiana, which has a 90-day provision, have more stringent programs.

First, I will break out the requirements by number to clarify what is covered under the P.E. seal of endorsement:

1. Commissioning or decommissioning containers
2. Replacement, reconstruction, or movement of containers
3. Reconstruction, replacement, or installation of piping systems
4. Construction or demolition that might alter secondary containment structures
5. Changes of product or service
6. Revision of standard operation or maintenance procedures at a facility

By the numbers:

1. The first part is a no-brainer. If you add a new tank the SPCC Plan requires recertification. This provision is for any regulated tank, flow-through vessel, oil-filled operational equipment, or mobile refueler that is regulated under the SPCC program with a capacity of 55 gallons or more. We see oversights when a tank is removed, thus reducing oil storage on sight. Yes, though. you’re reducing oil volume on sight, the original tank was part of a P.E. seal, and thus must be revisited by a P.E. Therefore, any changes to regulated tanks must be captured under a P.E. recertification.
2. The second requirement is for the most part the same as the first. The difference is that in the second requirement you are not removing or adding a regulated container -- it’s moving or modifying an existing regulated container. The oversight on this provision is generally on the “like-kind” replacement. Though, in theory, you have changed with the same type of container; however, you have altered a container that was previously sealed by a P.E.
3. Like numbers one and two, the third requirement covers regulated oil piping. When an SPCC Plan is written detailed discussions are required of oil piping on-site in relation to construction, inspections, and location and are part of the P.E. review and endorsement. Hence, any modifications require recertification.
4. The fourth requirement is straightforward. Where we sometimes see an oversight under this requirement is when companies knock down a dike wall for tank installations or other maintenance activities, or when containment is improved for the better. In these cases, assertions are sometimes made that nothing has changed, or the system has been improved, so it’s better. However, you must remember, any modification to an item under the original P.E. endorsement must be revisited and recertified, no matter the size.
5. Requirements five and six are the two most commonly overlooked, and, subsequently, in more cases than not, they don’t get recertified as they should. Any tank that changes the product must be recertified. This may seem silly; however, part of the P.E. endorsement is to ensure the compatibility of tanks with the products being stored.
6. This last requirement is a somewhat vague but an important one. When a P.E. endorses a plan and backs it up with a seal of endorsement, the P.E. is stating that the procedures, inspections, and training are approved. That is to say, they meet the intent of the rule and shall be administered by the operator. Because of this, you must review the SPCC Plan with their P.E. before finalizing to ensure everything is agreeable so a final plan can be developed that meets the SPCC requirements. If one changes these, a P.E. must review again for compliance and provide recertification on the new edits.

Bottom line: Outside of making personnel changes, one should fire off a quick message to one’s P.E., or their P.E. representative, to confirm if a proposed modification is covered under §112.5 to avoid unnecessary issues down the line.

Need to read more? The current “bible” for all things to reference regarding SPCC regulations can be found on the EPA’s SPCC Guidance for Regional Inspectors website.

Additional reads:

• SPCC Plans 101 – Back to the Basics
• SPCC Plans – PE Endorsements
• SPCC Plans and FRPs, do plan signatures expire?
• If your facility’s containment is short, how does P.E. Seal SPCC Plan?
• Do you need an SPCC Plan for a Construction Site, Temporary Workover Site, Pipeline RoW Job Tanks? YES, YOU DO!
• A Reminder What is (and isn’t) an SPCC Plan Five-Year Review?

For a complete listing of archived articles and compliance insights, click here. Past blogs cover training requirements, clarification on additional confusing elements within the above rules, and much more.

We are here to help solve your compliance questions and challenges. Need some compliance assistance, or just have a question? Please email John K. Carroll III (jcarroll@wittobriens.com) Associate Managing Director – Compliance Services or call at +1 281-320-9796.

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