The American Society of Civil Engineers
Environmental Protection Agency’s
Spill Prevention Control and Countermeasure Program
Committee On Environment and Public Works
December 14, 2005
Mr. Chairman and Members of the Committee: The American Society of Civil Engineers (ASCE)∗ is pleased to offer its views to the Committee on the Environmental Protection Agency’s Spill Prevention, Control, and Countermeasure (SPCC) Program regulation that was announced on December 1, 2005.
ISSUE PRESENTED BY THE SPCC AMENDMENTS
Whether the Environmental Protection Agency (EPA) should promulgate a notice of proposed rulemaking that would revise its Spill Prevention, Control, and Countermeasure (SPCC) plan requirements for aboveground storage tanks to reduce the regulatory burden for certain facilities. The rule as proposed would allow owners of facilities that store less than 10,000 gallons of oil (and meet other qualifying criteria) to self-certify their SPCC plans in place of a mandatory review and certification by a Professional Engineer required by the present SPCC regulations, 40 C.F.R. 112.1 et seq.1
ASCE believes the policy change to allowing facility owners to certify that they are in compliance with the SPCC plan is potentially harmful. It would exempt more than one-half of the nation’s estimated 618,000 facilities with aboveground storage tanks currently covered by the Agency’s 32-year-old engineering certification requirement.
• 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 the complex calculations necessary to certify compliance with the SPCC program requirements.
• If adopted, the rule would continue the recent pattern by the Agency of weakening environmental protections by removing from several regulations the need for a PE certification in the name of “burden reduction” on U.S. industry.
• A policy of allowing relatively small oil-storage facilities to self-certify their compliance would not protect human health and the environment from toxic spills that might occur at the facilities.
• The PE certification revisions would undermine the national spill prevention, control, and countermeasure program and create confusion within the industry through a patchwork of federal and state programs with inconsistent or conflicting standards.
In sum, the proposed SPCC amendments could substantially weaken the protection against a significant threat to human health and the environment, and we strongly encourage the Agency to withdraw the NPRM for the SPCC.
The EPA’s Spill Prevention, Control and Countermeasures Program dates from January 1974.2 Under the Clean Water Act, 33 U.S.C. 1251 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq., EPA is responsible for protecting the nation's waters from the adverse effects of oil spills.
The SPCC regulations implement section 311(j) of the Clean Water Act and are designed to prevent discharges of oil from facilities and to contain any discharges that do occur. Currently, the rules apply to "onshore, non-transportation-related facilities" that could reasonably be expected to discharge oil into navigable waters, when these facilities have (1) an aboveground oil storage capacity of more than 660 gallons in a single container; (2) a total aboveground oil storage capacity of more than 1,320 gallons in multiple containers; or (3) a total underground oil storage capacity of more than 42,000 gallons.
The original SPCC regulations were designed to
prevent the discharge of oil from non-transportation-related onshore and offshore facilities into or upon the navigable waters of the United States or adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act).3
The regulations establish requirements for the preparation and implementation of Spill Prevention, Control, and Countermeasure (SPCC) plans. SPCC plans are designed to complement existing laws, regulations, rules, standards, policies, and procedures relating to safety standards, fire prevention, and pollution prevention rules.4
The purpose of an SPCC Plan is to form a comprehensive Federal-State spill prevention program that minimizes the potential for discharges. The SPCC Plan must address all relevant spill prevention, control, and countermeasures necessary at the specific facility. Compliance with this part does not in any way relieve the owner or operator of an onshore or an offshore facility from compliance with other Federal, State, or local laws.5
A licensed Professional Engineer must review and certify the SPCC plan on a one-time basis for it to be effective.6 This requirement has been in effect since the initial SPCC regulation took effect in January 1974.
In 2002, EPA issued comprehensive revisions to its SPCC regulations.7 The revised regulations apply to owners or operators of non-transportation facilities that store or use oil such as electrical substations, facilities containing transformers and certain hydraulic or manufacturing facilities.
These non-storage systems do not necessarily have to be equipped with secondary containment so long as they have diversionary structures to prevent discharges of oil from reaching navigable waters. The geographic scope of the rule was extended from facilities that could discharge oil to navigable waters to facilities that could have oil discharges to shorelines and offshore waters.
In addition, the regulatory threshold for the SPCC rule was raised to facilities that have 1,320 gallons of aboveground storage capacity. The old rule also applied to facilities that had individual containers with capacities of at least 660 gallons. The revised rule contains a de minimis exemption so that only containers with a capacity at least 55 gallons or more are counted when calculating the aboveground storage capacity.
Facilities with underground storage of at least 42,000 gallons are also subject to the SPCC rules. Underground storage tanks regulated under a state or federal program under the Resource Conservation and Recovery Act (RCRA) or that have been permanently closed in accordance with the RCRA tank regulations are not counted when calculating the underground storage capacity of the facility to determine SPCC regulatory threshold, however.8 A facility or part of a facility that is used exclusively for wastewater treatment is exempt from the SPCC regulation.9
Now the 2002 standards are being significantly revised. To qualify for the proposed certification exemption, the facility must have (1) an aggregate facility oil storage capacity of 10,000 gallons or less; and (2) had no discharges … during the 10 years prior to self-certification or since becoming subject to the SPCC requirements if less than 10 years. Facilities that have been subject to SPCC for less than 10 years, including new facilities, would need to demonstrate no discharges only for the period of time they have been subject to the SPCC rule. Self-certified plans would not be allowed to include “environmentally equivalent” alternatives to required plan elements or to claim impracticability with respect to any secondary containment requirements.10
EPA estimates that 618,000 facilities are currently regulated under the SPCC rule. Oil production facilities (28 percent), farms (25 percent) and electric utility plants (8 percent) account for most of the SPCC-regulated facilities. … The Agency proposal … will exempt from the 2002 regulations a total of 322,000 facilities storing between 1,320 gallons and 10,000 gallons of oil in containers of 55 gallons or more.11
After numerous delays, the 2002 regulations are scheduled to take effect on February 17, 2006, for facilities operating before August 16, 2002. Those facilities must implement their SPCC plans by August 18, 2006. Facilities that begin operating between August 2002 and August 2006 must implement their plans by August 2006, and facilities that begin operating after August 16, 2006, must prepare and carry out their SPCC plans before starting operations.12
I. The plan to allow owners to certify for themselves that their facility complies with the SPCC rules is particularly ill advised. Typically facility owners are not technically competent enough to make the complex calculations necessary to comply with the SPCC program requirements.
The proposal to permit facility owners to self-certify their compliance with the SPCC rules is contrary to good public policy. The inherent conflict of interest involved in an owner’s certifying his conformity with the rules is obvious. More importantly, a facility owner is unlikely to possess the education, training. and technical qualifications necessary to determine whether the facility is in full compliance. The certification of a Professional Engineer (PE) is absolutely necessary to guarantee conformity with the highly complex regulatory requirements of the SPCC.
Professional Engineers are trained in the application of a variety of scientific disciplines of which knowledge is essential to the successful certification and safe operation of oilstorage facilities. Among the critical skills required to draft an SPCC certification are a knowledge of modeling to study geo-environmental problems involving pollutant migration; hydrodynamic pressures; seismic forces and design standards; the long-term migration of nonaqueous-phase liquids in soils; the use of secondary containment materials; groundwater flow; ecological risk assessments; and other vitally important areas of professional knowledge.
Engineers apply the theories and principles of science and mathematics to research and develop economical solutions to technical problems. Engineers design, plan, and supervise the construction of buildings, highways, and transit systems. They develop and implement improved ways to extract, process, and use raw materials, such as petroleum and natural gas. They develop new materials that both improve the performance of products and take advantage of advances in technology. They analyze the impact of the products they develop or the systems they design on the environment and people using them. Engineering knowledge is applied to improving many things, including the quality of health care, the safety of food products, and the efficient operation of financial systems.
Civil engineers design and supervise the construction of roads, buildings, airports, tunnels, dams, bridges, and water supply and sewage systems. Civil engineering, considered one of the oldest engineering disciplines, encompasses many specialties. The major specialties within civil engineering are structural, water resources, environmental, construction, transportation, and geotechnical engineering.
A bachelor’s degree in engineering is required for almost all entry-level engineering jobs. College graduates with a degree in a physical science or mathematics occasionally may qualify for some engineering jobs, especially in specialties in high demand. Most engineering degrees are granted in electrical, electronics, mechanical, or civil engineering. Engineers trained in one branch may work in related branches, however.
Most engineering programs involve a concentration of study in an engineering specialty, along with courses in both mathematics and science. Most programs include a design course, sometimes accompanied by a computer or laboratory class or both. In addition to the standard engineering degree, many colleges offer two- or four-year degree programs in engineering technology. These programs, which usually include various hands-on laboratory classes that focus on current issues, prepare students for practical design and production work, rather than for jobs which require more theoretical and scientific knowledge.
Graduates of four-year technology programs may get jobs similar to those obtained by graduates with a bachelor’s degree in engineering. Engineering technology graduates, however, are not qualified to register as professional engineers under the same terms as graduates with degrees in engineering. Some employers regard technology program graduates as having skills between those of a technician and an engineer.
About 330 colleges and universities offer bachelor’s degree programs in engineering that are accredited by the Accreditation Board for Engineering and Technology (ABET), and about 250 colleges offer accredited bachelor’s degree programs in engineering technology. ABET accreditation is based on an examination of an engineering program’s student achievement, program improvement, faculty, curricular content, facilities, and institutional commitment.
Bachelor’s degree programs in engineering typically are designed to last four years, but many students find that it takes between four and five years to complete their studies. In a typical four-year college curriculum, the first two years are spent studying mathematics, basic sciences, introductory engineering, humanities, and social sciences. In the last two years, most courses are in engineering, usually with a concentration in one branch.
In addition, a few engineering schools have arrangements whereby a student spends three years in a liberal arts college studying pre-engineering subjects and two years in an engineering school studying core subjects, and then receives a bachelor’s degree from each school. Some colleges and universities offer five-year master’s degree programs. Some five- or even six-year cooperative plans combine classroom study and practical work, permitting students to gain valuable experience and finance part of their education.
All 50 states and the District of Columbia require licensure for engineers who offer their services directly to the public. Engineers who are licensed are called Professional Engineers (PE). This licensure generally requires a degree from an ABET-accredited engineering program, four years of relevant work experience, and successful completion of a state examination.
The licensure directive is no mere formality. Forty-eight states make it a felony to practice engineering without a license or to offer to practice engineering without a license. Indeed, in 38 states, it is even a felony to use the term "engineer" to describe one's qualifications without a PE license.
Recent graduates can start the licensing process by taking the examination in two stages. The initial Fundamentals of Engineering (FE) examination can be taken upon graduation. Engineers who pass this examination commonly are called Engineers in Training (EIT) or Engineer Interns (EI). The EIT certification usually is valid for 10 years. After acquiring suitable work experience, EITs can take the second examination, the Principles and Practice of Engineering Exam. Several states have imposed mandatory continuing education requirements for relicensure. Most states recognize licensure from other states. Many civil, electrical, mechanical, and chemical engineers are licensed as PEs.
Absent the training and experience described above, facility owners should not be allowed to certify on their own that their facilities comply with the SPCC rules. Any effort to weaken the current requirements to permit someone other than a licensed professional engineer to execute essential engineering decisions could have the gravest possible consequences – including the possible failure of containment buildings, oil and petroleum tanks, and ancillary structures necessary to the environmentally safe handling of these materials.
II. If adopted, the rule would continue the recent pattern by the Agency of weakening environmental protections by removing from several regulations the need for a PE certification in the name of “burden reduction” on U.S. industry.
Since 2002, the Agency has attempted to downgrade the professional qualifications required to implement regulations under the Resource Conservation and Recovery Act (RCRA) and the Brownfields Revitalization and Environmental Restoration Act.
On January 17, 2002, EPA proposed to amend the current regulations under RCRA in order "to reduce the recordkeeping and reporting burden … RCRA imposes on the states, the public, and the regulated community."13
In 15 specific instances, the Agency proposed to allow owners and operators of hazardous-waste treatment, storage and disposal facilities (TSDFs) to hire "certified hazardous materials managers" to execute a variety of intricate and complicated engineering designs and calculations and to exercise judicious reasoning. All of these tasks now properly require the services of a professional engineer.
In a more recent—and far more egregious example—the Agency adopted a final regulation under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) that would allow, in relevant part, high school graduates lacking a baccalaureate degree from an accredited college or university to conduct “all appropriate inquiries” at brownfields developments in order for innocent landowners to qualify for a defense from liability.14
Specifically, the final brownfields rule will allow persons without a baccalaureate degree to be defined as “environmental professionals” authorized to carry out preliminary site assessments under the all appropriate inquiry requirement of the Act. In its rationale, the Agency said a condition to require college graduates (with or without training as engineers or scientists) would be “too limiting” on Americans who want to perform these congressionally mandated environmental site assessments.
We agree with those commenters who asserted that individuals with a significant number of years of experience in performing environmental site assessments, or all appropriate inquiries investigations, should qualify as environmental professionals for the purpose of conducting all appropriate inquiries, even in cases where such individuals do not have a college degree.15
Indeed, nothing in the final rule limits the term “environmental professionals” to high school graduates. Anyone with less than a baccalaureate degree would qualify in the right circumstances, possibly even extending the definition to some technicians with less than a high school education.
In short, the willful “dumbing down” of the professional requirements necessary to perform highly technical jobs at environmentally sensitive facilities is well under way at the Agency—and likely to continue. It is not clear where the process will lead, but it seems plain from the evidence that the only winners will be the facility owners who will be free to hire high school dropouts—or themselves—to determine (quite cheaply) how to comply with federal environmental standards.
Moreover, it is quite likely that the campaign to narrow the range of environmental protections through an attenuation of industry’s requirements to assure compliance with the rules has at least as much to do with the Agency’s budget-driven priorities as it does with the presumed concern over the regulatory burdens to industry. At a stakeholders’ meeting in March 2004, an EPA official candidly acknowledged that the Agency lacks the budget and staff to regulate the large number of oil-storage facilities.
The [Agency] Oil Program’s resources are limited. EPA deals with limited resources in the way [it carries out] the program. Within the current framework, it is possible for the [A]gency to prioritize its implementation activities. EPA emphasizes that the Oil Program regulates a very large universe of facilities and that [it] must prioritize [its] efforts in order to be effective.16
A government agency’s failure to obtain adequate funding and staff to manage a critical environmental program—even in the face of an indifferent White House and Congress— is not a principled reason to weaken the program by scaling back on the program’s reach. Those who are charged with the security of the nation’s water supply may not unilaterally diminish the scope of a key plan intended to maintain the necessary safety measures. EPA always must make the case for a stronger (not a weaker) SPCC program.
III. A policy of allowing relatively small oil-storage facilities to self-certify their compliance would not protect human health and the environment from toxic spills that might occur at the facilities.
The self-certification requirement will not reduce the likelihood of releases from small oil-storage facilities. Certainly, facilities storing less than 10,000 gallons of oil overall cannot guarantee that they will not release toxic discharges into U.S. waters. EPA itself acknowledges that oil spills from facilities containing less than 10,000 gallons are at least as serious—and perhaps more so—than releases from mega-facilities.
In 2002, the Agency reported: “Real-world examples of oil spills demonstrate that spills of petroleum oils and vegetable oils and animal fats do occur and produce deleterious environmental effects. In some cases, small spills of vegetable oils can produce more environmental harm than numerous large spills of petroleum oils.”17
Earlier, EPA explained the dangers of even minute spills. “[A] small spill can have a serious impact. A single pint of oil released into the water can cover one acre of water surface area and can seriously damage an aquatic habitat. A spill of only one gallon of oil can contaminate a million gallons of water.”18
IV. The PE certification revisions would undermine the national spill prevention, control, and countermeasure program and create confusion within the industry through a patchwork of federal and state programs with inconsistent or conflicting standards.
Unlike other provisions of the Clean Water Act, states are not delegated by EPA to enforce federal SPCC standards; the full onus of the enforcement and administration of the federal program is upon the Agency in all 50 states. Nevertheless, 31 states have adopted extensive spill prevention, control, and countermeasure regulations similar to the federal program.
The states with SPCC programs established under their own laws are Alabama, Arizona, California, Colorado, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
The state programs are as stringent as the federal program; some states have even stricter rules. Oklahoma, for one, has an SPCC engineering certification requirement that is more rigorous than the Agency’s own one-time documentation rule. “Owners or operators of aboveground storage tanks must have an approved Spill Prevention Control and Countermeasure Plan (SPCC Plan) that is updated every five years and signed by a registered professional engineer.”19
The certification policy change in the notice of proposed rulemaking of December 12, 2005, is potentially harmful. It would exempt more than one-half of the nation’s current aboveground storage tank facilities to be exempted from the current safety standards in important respects.
It would allow facility owners with little or no appropriate training and experience for all intents and purposes to serve as their own engineers, effectively tolerating the practice of engineering by unlicensed individuals in violation of state law in every state in the United States. These owners, well-meaning or otherwise, are almost certainly unable to make the complex engineering, chemical, and scientific calculations necessary to ensure the public health, safety, and welfare.
The certification revisions would undermine the national spill prevention, control, and countermeasure program and create confusion within the industry through a patchwork of federal and state programs with inconsistent or conflicting standards.
The proposed SPCC amendments could pose a significant threat to human health and the environment, and we strongly encourage the Agency to withdraw the December 12 NPRM for the SPCC.