Revisited: Are railcars regulated under the SPCC rule? (SPCC Discussion)
John K. Carroll III
Associate Managing Director at Witt O'Brien's, LLC, Part of the Ambipar Group
This week’s article is focused on a topic that I regularly have discussions with clients about. For the most part, there’s not a huge amount of considerable consensus on this topic within industry, and for years regulators did not place a lot of focus on it. Therefore, in many cases, the topic was often unintentionally overlooked. One important note -- this article won’t provide answers to all questions associated with the regulation of railcars under the SPCC rule. However, it promises to be a solid foundation for you to start with.
As with any regulation, the Spill Prevention, Control, and Countermeasures (SPCC) Plan rule includes several parts that cause some confusion. This is due in large part to how diverse industry is. Along that same vein, railcars are one topic under the SPCC rule that Witt O’Brien’s notes often causes a significant amount of perplexity. I’d even go so far as to say it’s one of the most confusing parts of the SPCC rule. In fact, it’s so confusing that every Environmental Protection Agency (EPA) region I’ve worked with has noted they have taken it upon themselves to review each facility solely on a case-by-case basis.
------------------------
RSVP Now! Witt O'Brien's Free Virtual SPCC and FRP Workshops - Agency Presenters
?
Click here to learn more.
----------------------
First, let’s address the answer to this question: Yes, railcars can be subject to the SPCC rule.
Why is this answer so controversial? Well, for the most part, railcars are regulated by the Department of Transportation (DOT) and are exempt from the SPCC rule. However, in 1971 the EPA and the DOT issued a joint memorandum of understanding to clarify jurisdictional issues related to the regulation of facilities with the potential to discharge oil. The memorandum of understanding clarifies, to a certain extent, the most common jurisdictional issues. Nonetheless, the memorandum does not fully address every unique situation.
Before examining what the EPA has to say, below are two definitions to take into account.
“transports” or “transportation” means the movement of property and loading, unloading, or storage incidental to the movement.
Transportation of a hazardous material in commerce begins when a carrier takes physical possession of the hazardous material for the purpose of transporting it and continues until the package containing the hazardous material is delivered to the destination indicated on a shipping document, package marking, or other medium, or, in the case of a rail car, until the car is delivered to a private track or siding.
The initial tendency to want to point towards DOT and even the FRA is understandable as they both are responsible for regulating rail activities. However, we are speaking only to railcars in this article. Therefore, you must be mindful when oil storage and navigable waterways are involved, FRA cedes regulatory authority to the EPA and DOT cedes regulatory authority once under control by the facility.
领英推荐
What does the EPA have to say on the matter? In the EPA’s SPCC Guidance for Regional Inspectors they note:
2.5.2 Railroad Cars
DOT regulates railroad cars used for the transport of oil in interstate or intrastate commerce and the related equipment and appurtenances. DOT jurisdiction includes railroad cars that are passing through a facility or are temporarily stopped on a normal route. EPA regulates railroad cars under the SPCC rule if they are operating exclusively within the confines of a non-transportation-related facility. EPA regulates both transfers to or from railroad cars and when the railroad cars serve as non-transportation-related storage at an SPCC-regulated facility.
When the railcar is serving as non-transportation-related storage, if the railroad car has a storage capacity above the regulatory threshold amount of oil, and there is a reasonable expectation of discharge to navigable waters or adjoining shorelines, the railroad car itself may become a non-transportation-related facility, even if no other containers at the property would qualify it as an SPCC-regulated facility.
The EPA also provides in their guidance document references, and on their website, the following response which they address this topic head-on: Letter to Mr. Chris Early of Safety-Kleen Corporation (July 14, 2004)
Numerous petroleum products within the U.S. are still transported by rail, and, in many cases, when railcars arrive at their final destination the oil within the railcars can’t be offloaded immediately – sometimes sitting for weeks or even months. The process for offloading and unloading by railcar are not new; however, in recent years, we’ve seen an increase of non-terminals leasing out their tracks to rail companies, and even terminals and refineries doing the same for temporary railcar storage. This practice may or may not be subject to SPCC regulations - secondary containment obligations. This upward trend, along with the lack of clarity on this topic all around, has a handful of those within industry potentially out of compliance with the SPCC rule.
Are the railcars staged at your facility regulated by EPA and therefore required to have secondary containment? Again, these are case-by-case discussions. Start the process if you’re unsure:
A good rule of thumb the EPA offers up is that if railcars, which are located on a rail tack owned, leased, or operated by a facility that aren’t in continuous loading or offloading status – meaning they are sitting full and idle on a rail track – are definitively subject to the SPCC rule. Subsequently, the railcars are treated like storage tanks requiring “sized” secondary containment. If the railcars are empty, however, that is a different story. The EPA’s position has been if the railcars are sitting full and idle at a facility, this is considered storage for the facility and they are no longer in transit and therefore fall under EPA, as the facility is utilizing the railcars as tankage to store product.
As many facilities have been established for years, and most companies have generally viewed railcars as DOT assets only, they often don’t consider any negative EPA implications. As a result, once the issues are brought to light, many are left with two options. One: design containment for the railcar area, or two: put a procedure in place to ensure all railcars are continuously offloaded/unloaded. Before deciding one way or the other, speak with your consultant or the EPA to ensure a proper adherence is determined, as these are resolved on a case-by-case basis.
Want 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.
For a complete listing of archived blogs 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 ([email protected] ) Associate Managing Director – Compliance Services or call at +1 281-320-9796.
Witt O’Brien’s:
?
Environmental Manager - North America Manufacturing
3 年Great discussion! Thanks for the link to the infamous letter to SK. I've had plenty of discussion around this in my travels.