March 4, 2021: SPCC Plans and the Storage of Rail Tank Cars

Our recent discussion on the storage of rail tank cars continues as there has been a number of questions from our clients concerning the issue of a “Spill Prevention, Control, and Countermeasure (SPCC) plan”.  For those unfamiliar with this plan, it is an Environmental Protection Agency (EPA) regulation designed “to help facilities prevent a discharge of oil into navigable waters or adjoining shorelines.”   

How these regulations impact your facility, your railcars and their storage will depend upon their status; transportation vs. non-transportation facility, and where you are in relationship to a navigable waterway or shoreline and the commodity contained within those railcars, loaded or residue.  First though, let’s clear up the jurisdictional issue which causes so many problems when deciding whether you are governed by SPCC. 

Since we are dealing with railroad tank cars only in this circumstance; it is natural to look at the U. S. Department of Transportation (USDOT) modal agency; Federal Railroad Administration (FRA) as the agency responsible for regulating storage activities, either loaded or residue.  While it is appropriate to look to FRA in circumstances involving general storage of railcars, when oils and navigable waterways are involved, FRA cedes regulatory authority to the EPA.

There are many reasons for this, including the expertise embedded within the EPA to protect navigable waterways and shorelines.  When we review FRA’s authority to regulate, we must also be mindful of the following:
Transportation is defined in 49 U.S. Code §5102(13) as follows: “transports” or “transportation” means the movement of property and loading, unloading, or storage incidental to the movement.

And for hazardous materials transportation (49 CFR §171.1(c) clarifies the definition even further, as follows:
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.

We can only conclude that when railcars are moved into storage (not storage incidental to movement), the cars are no longer in transportation and FRA’s authority is curtailed in this limited circumstance.  FRA’s authority is still prevalent in areas such as design and construction, containment and securement, pre-transportation functions, if applicable and other requirements. 

As a result, we need to look to the EPA regulations to determine if your storage of railcars meets the threshold of when an SPCC plan applies but first, let me state emphatically that if you think an SPCC plan may apply to you, your duty is to read and understand the regulations (See 40 CFR ß112.7 – General Requirements…) and become familiar with the regulations governing an SPCC.   

As a reminder, we are only discussing the storage of railroad tank cars.  Operations that are intended to move railroad tank cars and their contents, loaded or residue, from one location to another and not just within the confines of a non-transportation facility, are regulated by FRA and not subject to SPCC requirements.  Here we go!

We all know that tank cars have a shell capacity of 1320 gallons or more, the exception being some of those Bromine cars running around West Virginia in the early 1980s but as far as I know, they’re long gone.  So, let’s assume that all cars meet the 1320 gallons shell capacity, which is the first indicator that you may need an SPCC plan. 

The second criteria is what is in the package?  Is it an oil and not just a petroleum-based oil?  Does the oil meet the following EPA criteria?

Oil means oil of any kind or in any form, including, but not limited to: fats, oils, or greases of 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, or oil mixed with wastes other than dredged spoil.

Though this is not a comprehensive list, these are the types of oil most likely to be carried in a rail tank car.  For a complete list of oils, see 40 CFR §112.2.  

Some other factors to consider may have to do with products such as Ethanol, which is an alcohol, so you may think that Ethanol would not be considered as an oil.  This may be true if it’s the ethanol going for human consumption but poison it by adding gasoline or other petroleum-based product to the ethanol for refinery use and to ensure nobody has a party on the way and now we have a material that may be subject to an SPCC plan. 

Finally, there has to be a navigable waterway or shoreline involved.  This doesn’t only mean ship or barge traffic must be on the waterway.  It may be a recreational lake or river that is in close proximity to your facility.  Even if your stream flows into a navigable waterway and there is a possibility that a spill will reach the navigable waterway then you are likely subject to the SPCC requirements.    

To summarize, if you are storing rail tank cars containing or last containing an oil in a non-transportation facility and are near a navigable waterway or shoreline, or a source that will empty into either in the event of a spill, you must comply with the requirements and develop an SPCC plan.  It is important to remember, that the 1320-gallon standard imposed by EPA is what the tank car will hold, not what is contained within the tank car. 

So, what exactly is an SPCC Plan?  Well, as you can imagine its primary objective is to prevent an oil spill into a waterway or shoreline.  It also considers countermeasures, as the name implies, to prevent a spill from reaching the waterway through various means of containment but finally, if the spill does reach the waterway, your plan will detail how to minimize environmental damage while restoring the waterway to its appropriate condition.

 EPA provides guidance in Appendix C, D and E of part §112 and though they are not compulsory guidelines, they are an excellent indication for addressing specific issues that a plan will require. 

Appendix C to Part 112—Substantial Harm Criteria
Appendix D to Part 112—Determination of a Worst Case Discharge Planning Volume
Appendix E to Part 112—Determination and Evaluation of Required Response Resources for Facility Response Plans

Ultimately though, and while all of this may seem a bit overwhelming, there is some good news. 

Liquefied Petroleum Gasses (Propane, Butane and other derivatives) are not subject to an SPCC Plan.  For those on a navigable waterway, don’t reinvent the wheel! Integrate your existing plans into your SPCC or FRP.  Finally, take a look at the EPA Inspector Guidance link (http://bit.ly/SPCCGuidanceforRegionalInspectors) to develop an exceptional plan moving forward.  When looking at the guidance document and since our focus is on rail tank cars pay close attention also to the Letter to Mr. Chris Early of Safety-Kleen Corporation (July 14, 2004)  This letter clarifies EPA’s position on transportation; when it potentially ends, and when you are subject to the SPCC.

What we have discussed so far consists of a very limited look at SPCC, a complex regulation. 

Of course, if you need additional clarification or help or would just like to know whether your facility or the facility you may consider using to store tank cars is subject to the SPCC, contact STARS at the address below.  We can help you negotiate the DOT and EPA regulations to make sure you are always safe and in compliance.  

STARS
Local: (352) 200-5017
Toll Free: (844) 88- STARS
Email: info@starshazmat.com

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