Ámbito de estudio

In contrast to OSHA, the EPA has jurisdiction to regulate oil and gas storage sites for the protection of human health and the environment. Accordingly, the agency administers a number of environmental statutes relevant to oil and gas production, including the Clean Air Act (CAA); the Clean Water Act (CWA); the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund); the Resource Conservation and Recovery Act (RCRA); and the Toxic Substances Control Act (TSCA). However, many of these statutes contain various exemptions applicable to oil and gas well sites.

8.6.1

Clean Water Act (CWA)

The Federal Water Pollution Control Act of 1972, as amended, or CWA, is the principal federal statute for protecting navigable waters, adjoining shorelines, and the waters of the contiguous zone from pollution. Section 311 addresses the control of oil and hazardous substance discharges and provides the authority for a program to prevent, prepare for, and respond to such discharges. Specifically,

§311(j)(1)(C) mandates regulations establishing procedures, methods, equipment, and other requirements to prevent and contain discharges of oil44 from facilities and vessels.

8.6.1.1

Spill Prevention Control and Countermeasure (SPCC) Rule

The SPCC regulation promulgated by EPA under the CWA, has been in effect since January 10, 1974 (38 FR 34164). The 1974 SPCC Rule established oil discharge prevention procedures, methods, and

44

equipment requirements for non-transportation-related facilities with an aboveground oil storage capacity greater than 1,320 gallons (or greater than 660 gallons in a single aboveground tank) or a buried

underground oil storage capacity greater than 42,000 gallons. Regulated facilities were also limited to those that, because of their location, could reasonably be expected to discharge oil into the navigable waters of the U.S. or adjoining shorelines. Subparagraph (e)(5)(iii) contains specific requirements for bulk storage tanks at onshore oil production facilities, which are defined in subparagraph (e)(5)(i) as including “all wells, flowlines, separation equipment, storage facilities, gathering lines, and auxiliary non-

transportation-related equipment and facilities in a single geographical oil or gas field operated by a single operator.”45

These requirements address the need for storage tank construction to be compatible with the oil being stored, secondary containment to catch spills, periodic inspection and maintenance, and installation of fail-safe devices to prevent overflow and collapse. Under the security provisions for unattended SPCC facilities, “All plants handling, processing, and storing oil should be fully fenced, and entrance gates should be locked and/or guarded when the plant is not in production or is unattended.” However, oil production facilities (see subparagraph (e)(9)(i)), were specifically excluded from compliance with these requirements.46

8.6.2

Clean Air Act Amendments

Following a series of chemical accidents in the U.S. and overseas, Congress enacted the Clean Air Act Amendments (CAAA) of 1990. Under 42 U.S.C. § 7412 (r), owners and operators of stationary sources47

45

The US Environmental Protection Agency. SPCC Guidance for Regional Inspectors, US EPA, Version 1.1, 3/14/2006 p. 1-2.

46

38 FR 34168-70.

47

Stationary sourcemeans any buildings, structures, equipment, installations, or substance-emitting stationary activities that belong to the same industrial group, which are located on one or more contiguous properties and under the control of the same person (or persons under common control), and from which an accidental release may occur (63 FR 645).

must identify hazards, prevent, and minimize the effect of accidental releases whenever extremely hazardous substances are present at their facility.48

This section of the CAAA required the EPA to promulgate an initial list of at least 100 substances that, in the event of an accidental release, “are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment.” Stationary sources that have more than a threshold quantity of a regulated substance are subject to accident prevention regulations, including the requirement to develop a risk management plan (RMP).49

E&P facilities were originally considered for coverage under the RMP rule. However, in 1995, the American Petroleum Institute (API) submitted an analysis50 to the EPA docket that argued for removing the facilities from the scope of the rule asserting that the facilities did not pose a significant flammable or toxic hazard offsite. In January 1998, the EPA agreed to an exemption, stating the “EPA believes regulated flammable substances in naturally occurring hydrocarbon mixtures, 51 such as crude oil, that contain many non-volatile components, are unlikely to form large vapor clouds and therefore, generally have low potential for vapor cloud explosions. EPA considers vapor cloud explosions the consequence of greatest concern for flammable substances.” EPA further stated that “the general duty clause of section 112(r)(1) would apply when site-specific factors make an unlisted chemical extremely hazardous.” 52

48

Guidance for the Implementation of the General Duty Clause of the Clean Air Act, Section 112(r)(1), US EPA, Publication No. EPA 550-B00-002, May 2000, page 2.

49

63 FR 640, 640 (January 6, 1998).

50

Hazard Assessment of Exploration and Production Facilities Potentially Subject to the Environmental Protection Agency’s Risk Management Program regulations (API, January 20, 1995).

51

EPA defines naturally occurring hydrocarbon mixtures as any or all combination of the following: natural gas condensate, crude oil, field gas, and produced water.

52

8.6.2.1

The General Duty Clause

The Clean Air Act Amendments include a “general duty clause” which holds owners and operators responsible for preventing chemical accidents involving extremely hazardous substances. The clause states that:

It shall be the objective of the regulations and programs authorized under this subsection to prevent the accidental release and to minimize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance. The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty, in the same manner and to the same extent as section 654, title 29 of the United States Code, to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.

As part of their responsibility, industries have developed standards and generally accepted safe practices to address the risks posed by extremely hazardous substances.53 The EPA recommends that owners and operators handling extremely hazardous substances “adhere to a recognized industry standard and practices (as well as government regulations)” to comply with the general duty clause. The EPA advises that when site specific conditions create “unique circumstances” that render some standards

“inapplicable,” the Agency “may exercise its authority to require an owner or operator to implement additional measures to address the hazard.”

To advise the regulated community of its general duty clause obligations, the EPA has published a number of Chemical Safety Alerts. Alerts have addressed a variety of subjects including pressure vessel hazards, lightning hazards to facilities handling flammables, and the catastrophic failure of storage tanks. Security guidance similar to the “Chemical Accident Prevention: Site Security” and “Anhydrous

53

Although there is no definition for extremely hazardous substances, the legislative history of the 1990 Clean Air Act Amendments suggests criteria which EPA may use to determine if a substance is extremely hazardous. The Senate Report stated the intent that the term “extremely hazardous substance” would include any agent “which may or may not be listed or otherwise identified by any Government agency which may as the result of short-term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity” (Senate Committee on Environment and Public Works, Clean Air Act Amendments of 1989, Senate Report No. 228, 101st Congress, 1st Session 211 (1989).

Ammonia Theft” safety alerts published under the general duty clause would alert operators to the security precautions necessary to prohibit members of the public from entering oil and gas storage facilities. Based on flammability, hydrocarbons stored at E&P facilities would meet the definition of extremely hazardous substances and thus be subject to the CAAA general duty clause.