LDEQ's Spill Prevention and Control Rule Amendment
LDEQ finalized amendments to the Spill Prevention and Control Rule (SPC Rule) (LAC 33:IX.Chapter 9) on August 20, 2010. WQ079. Three main changes will be addressed.
1. A definition of 'oil' is provided. Oil is "any kind or form of oil, including but not limited to: fats, oils, or greases from animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and other oils and greases including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, and oil mixed with waste other than dredged spoil." Sec. 901.D. This definition is identical to EPA's current regulatory definition, which was added in 2002. 40 CFR 112.2; 67 Fed. Reg. 47075-6 (July 17, 2002).
The prior rule stated that the SPC Rule applied to "oil of any kind or in any form, including, but not limited to petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil." It did not mention animal fats or vegetable oils. The prior formulation was drawn directly from the Clean Water Act and mirrors EPA's prior definition of oil. EPA has taken the position that the Clean Water Act definition ("oil of any kind or in any form") was expansive enough to include animal fats and vegetable oils. 67 Fed. Reg. 47076 (July 17, 2002). Its current definition, and LDEQ's new definition, makes clear that all oils, including animal fats, vegetable oil, and petroleum oil, are included.
2. The amendment creates separate storage capacity thresholds for hazardous substances and oil. Now, the applicability threshold for oil, as defined, is the "minimum aggregate aboveground storage capacity at which Paragraph A.2 of this Section applies is 1,320 U.S. gallons. For the purposes of this aggregate quantity determination, only containers with a capacity of 55 U.S. gallons or greater are counted. " Sec. 903.C. Although not stated in exactly the same way, LDEQ's new storage capacity threshold for oil seems to the same as EPA's. See 40 CFR 112.1(b)(1), (d)(2)(ii), and (d)(5).
The old capacity threshold (1,320 US gallons for two or more containers in the aggregate within a common storage area, or 660 US gallons for an individual container) no longer applies to oil. As a result of the amendment, a facility that stores oil in one 1,000 gallon tank, which was subject to the former version of the rules, would not be subject to the new version. The old capacity threshold remains applicable to hazardous substances.
3. A third change relates to the frequency of SPC Plan review. The new rule requires that the SPC Plan be reviewed every five years, instead of every three years. LAC 33:IX.905.F.
As a result of the amendment, a few issues of interpretation have arisen. As stated above, the amendment creates separate storage capacity thresholds for hazardous substances and oil. Based on this separate treatment, it seems a logical interpretation of the amendment that applicability is determined separately for each material. For example, a facility may have a 500 gallon tank containing hazardous substances and a 1,000 gallon tank storing oil. As each is below the capacity threshold for that substance, the SPC Rule is not applicable.
Additionally, the amendment does not mention a 'common storage area' when setting the applicability threshold for oil. The aggregate quantity determination utilizes containers greater than 55 gallons but is silent as to whether the containers to be counted may be spread throughout the facility or must be in a 'common storage area.' LDEQ has indicated that the intent was to keep the 'common storage area ' requirement for containers of oil. A request has been made to LDEQ that this interpretation be provided to all inspectors to lessen any confusion during inspections.
John B. King's principal areas of practice include environmental and oil and gas regulatory permitting and defense, compliance assistance, toxic tort defense, and litigation.