APRIL 2009


Letter from Chair

Many attorneys from the private and the public bar see each other on the opposite sides of cases time after time. As an attorney for Tennessee Department of Environment and Conservation Office of General Counsel, I see the pleadings filed by the same private members of the bar in appeals (a.k.a. petitions for review) of Orders issued by the Department. In some of these cases, I see the use of a form that was presumably developed by some prestigious law firm some years ago. The form appeal when filed does not specifically even address specific issues in the case but rather challenges an Order as not being constitutional under either the State or Federal Constitutions or being invalid for other reasons set forth in the Uniform Administrative Procedures Act.

I question the use of such forms for two reasons. First, the statutes that provide for filing an appeal of an Order require the appealing party to set forth the grounds and reasons for the party’s objection to the Order. Such an appeal rarely seems adequate in that it fails to dispute any of the alleged facts or to allege additional facts that may constitute a defense or a reason that penalties should be lower. In my experience, there are usually some factual issues involved in an appeal, even if the only factual issues involve the fact that some mitigating factors were not referenced in the Order. Moreover, it would appear that the failure to set out the facts in dispute in the petition for review would constitute waiver of the opportunity to dispute the alleged facts. On the other hand, if a petition for review does identify disputed facts or disputed remedies, the Department’s attorney can easier look into the claim of the appealing party.

The second reason I have for questioning the use of said forms is whether their use is appropriate in all cases. I doubt in all cases that private counsel really believes, after reasonable inquiry, that there has been a constitutional violation in the issuance of an Order. Additionally, even if there might be grounds for reversal of an environmental board ultimately for the grounds set out in the Uniform Administrative Procedures Act, pleading of this in the appeal of an Order before a Board is not required.

Why is this issue important? It is worthy of mention in my opinion because an appeal of Order is filed with the Department and should narrow the real issues in a case and not merely be an assertion that the Department has in some way acting inappropriately. By filing appeals that set out what issues really are involved, private counsel can make the Department attorney’s job easier. This could in turn lead to improved relations between public and private counsel.

Max A. Fleischer
Assistant General Counsel
TN. Dept. of Environment & Conservation
(615) 532-0126
max.fleischer@state.tn.us

Sixth Circuit Straddles Rapanos Split
By Gary C. Shockley

Few recent Supreme Court decisions have caused more consternation and confusion than Rapanos v. United States, 547 U.S. 715 (2006), in which a splintered Court struggled to define those wetlands covered by section 404 of the Clean Water Act, 33 U.S.C. § 1344. Offering three distinct tests—none of which commanded a majority of the justices—Rapanos has proved an analytical and practical conundrum for the lower federal courts. In its recent decision in United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009), however, the Sixth Circuit Court of Appeals has attempted to cut the Gordian knot of Rapanos. While perhaps sufficient to resolve that case, it is an open question whether the Court of Appeals’ attempted straddle of the Rapanos tests will provide much-needed clarity for lower courts and regulated parties.

United States v. Cundiff arose out of the actions of a father and son, Rudy and Seth Cundiff, who owned two adjacent tracts of land in western Kentucky‘s Muhlenberg County. The properties adjoined Pond and Caney Creeks, tributaries of the Green River, which in turn flowed to the Ohio. The southern tract, consisting of 85 acres, was acquired by father Rudy in 1990. Much of the southern tract was under water and was heavily impacted by acid-mine drainage from a nearby surface coal mine. Rudy began draining, trenching, and filling the southern tract to make it suitable for farming, leading to a long series of orders from EPA and the U.S. Army Corps of Engineers to cease those activities. Ignoring these orders, Rudy continued to dry out the southern tract and, in 1998, leased the 103-acre northern tract from Seth and began similar dredging and filling activities, which also affected the adjacent South Channel. The United States eventually brought a civil enforcement action for injunctive relief and civil penalties under CWA § 309, 33 U.S.C. § 1319, in the Western District of Kentucky, alleging that Rudy and Seth’s activities on the southern and northern tracts constituted unpermitted discharge of dredge and fill materials in violation of § 404.

The District Court granted the government’s motion for summary judgment, finding that both Cundiffs had violated the Act and imposing an injunction and a civil penalty of $225,000—of which all but $25,000 was suspended conditioned on their compliance with a restoration plan. Following the Supreme Court’s 2006 Rapanos decision, the case was remanded by the Sixth Circuit back to the district court for reconsideration. The Western District reaffirmed its finding that the Cundiff lands were “waters of the United States” under § 404 and the defendants again appealed. United States v. Cundiff, 480 F.Supp.2d 940 (W.D. Ky. 2007).

On appeal, the Sixth Circuit began its analysis by noting that the Corps and EPA had defined “waters of the United States” to include traditional navigable waterways, their tributaries, and the adjacent wetlands of both. In Rapanos, the Supreme Court was in agreement that the CWA’s definition of covered “waters of the United States” included some waters which were not navigable in any traditional sense. The Court’s disagreement arose over what standard distinguished non-navigable waters and adjacent wetlands which were subject to the Act from those beyond its scope. The four-justice plurality joining the opinion of Justice Scalia defined those covered non-navigable waters as “relatively permanent, free-flowing or standing bodies of water” connected to traditional navigable-in-fact waters and any wetlands connected to such tributaries by “a continuous surface connection.” Rapanos v. United States, 547 U.S. at 733-42 (plurality).

For concurring Justice Anthony Kennedy, however, the plurality’s continuous surface connection test strayed too far from the language and intent of the Act. For Kennedy, the proper ambit of CWA jurisdiction included those wetlands with a “significant nexus” to navigable-in-fact waters, or to waters that could reasonably be made navigable in fact. A significant nexus, under the Kennedy approach, requires a showing of “a significant affect” on the physical, chemical, or biological integrity of waters “more readily understood as ‘navigable.’” Id. at 779-80 (Kennedy, J., concurring). For wetlands adjacent to traditional navigable-in-fact waters, that adjacency alone is sufficient to establish CWA jurisdiction. For non-navigable tributaries, however, Justice Kennedy’s significant nexus must be shown on a case-by-case basis. Id. at 782.

Four Rapanos dissenters, led by Justice Stevens, suggested yet a third approach. Under the Stevens approach, the Court would defer to the agencies’ reasonable interpretation of the CWA and its regulations and to the district court’s findings of fact. The dissenters believed that adjacency alone was sufficient to establish CWA jurisdiction both for navigable waterways and for their non-navigable tributaries. Id. at 796-99, 807-09 (Stevens, J., dissenting). In other words, adjacency to a non-navigable tributary would be sufficient to establish CWA jurisdiction even if there were no continuous surface connection nor a significant nexus.

Thus, Rapanos produced at least three distinct tests for CWA jurisdiction over wetlands: (1) Scalia’s standard of continuous surface connection to relatively permanent, free-flowing or standing bodies of water; (2) Kennedy’s significant nexus-significant affect on physical, chemical, or biological integrity of navigable waters; and (3) Stevens’ deferential, adjacency-only requirement. In an effort to sort out this jumble, the Cundiff court first turned to Marks v. United States, 430 U.S. 188 (1977), which held that, when no single rationale commands a majority of the Supreme Court, the lower courts should apply the narrowest grounds put forward by the justices forming a majority. Here, however, it is not readily apparent whether the Scalia or Kennedy test rests on the “narrowest grounds.” In fact, those courts attempting to apply Marks’ narrowest-grounds analysis to Rapanos have reached widely varying conclusions. For example, the Ninth Circuit has held that the Kennedy significant nexus test applies in most instances, while the Eleventh Circuit has held that only the Kennedy test may be applied and the First and Seventh Circuits have held that either the Kennedy or Scalia tests is sufficient to establish CWA jurisdiction. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007); Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007); United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006). As the Sixth Circuit pointed out, Marks cannot be applied when the Court takes two conceptually distinct approaches, neither of which is merely a subset of the other. Even when “narrowest grounds” is viewed as the “less doctrinally sweeping,” Marks is not helpful when the competing approaches are doctrinally distinct. Here, the Scalia approach looks to continuous surface connection to relatively permanent waters, regardless of impact; the Kennedy test looks to physical, chemical, or biological impact, regardless of connection. Either could be deemed narrower or broader, depending upon the facts of particular cases. For example, if there were a significant affect but no continuous surface connection, Kennedy would find CWA jurisdiction but Scalia and the Rapanos plurality would not. Conversely, if there were a continuous surface connection between a wetland and a relatively permanent tributary, but no significant affect, the Court would presumably vote 8-1 for CWA jurisdiction, with Justice Kennedy the sole dissenter.

Reaching this analytical dead end, the Sixth Circuit in Cundiff joined the ranks of the courts choosing to apply both Rapanos tests in the alternative. Turning first to the Kennedy significant nexus test, the court noted that the district court had found that the Cundiffs’ wetlands affected the navigable-in-fact Green River and its tributary creeks by storing water during high-flow periods, filtering acid mine drainage, and providing wildlife and plant habitat. Since the defendants’ dredging and filling activities hampered these functions and contributed to downstream flooding and erosion, the significant nexus-significant affect standard had been met. In addition, the court agreed that Rudy’s trenching facilitated acidic drainage and sedimentation in the downstream navigable waters. The court also rejected the defendants’ argument that a significant nexus could only be shown by laboratory analysis of water or soil samples, finding no basis in Rapanos or the Act for such an evidentiary requirement.

Likewise, the Scalia plurality test was satisfied on the trial court’s record. First, the channel adjacent to the Cundiffs’ wetlands included a relatively permanent, free-flowing body of water (Pond and Caney Creeks), which were connected to a traditionally navigable, interstate body of water (Green River). Second, there was a continuous surface connection between the creeks and the wetlands in question, such that it was difficult to say where the water ended and the wetland began. The Court of Appeals refused to hold that the Scalia plurality’s test required a perpetual flow between a relatively permanent body of water and the wetlands, finding that the plurality’s touchstone was whether the connection was such that there was uncertainty as to the water-land divide. By definition, wetlands are not water and adding a perpetual flow requirement would ignore the plurality’s holding that wetlands can be regulated under the CWA. The court also noted that the trench from the north tract to the South Channel provided a largely uninterrupted flow, created by Rudy to transport acid mine drainage and dry the north tract. For purposes of analysis, the fact that the required continuous surface connection was man-made rather than natural was irrelevant.

Thus, the Sixth Circuit affirmed the district court’s judgment, holding that both significant nexus and continuous surface connection were present in the case. As the Cundiff court made clear, however, there are likely to be cases in which the tests do not overlap and may even yield opposite results. In those cases, the proper analysis and outcome remain obscure. Even in presumably clearer cases, the lack of a bright-line, or even consensus, approach leaves both agencies and landowners at risk. Since the Supreme Court denied certiorari in two CWA criminal cases presenting Rapanos issues this term, United States v. Lucas, 516 F.3d 316 (5th Cir.), cert. denied sub nom Lucas v. United States, 129 S.Ct. 116 (U.S. 2008); United States v. McWane, Inc., 505 F.3d 1208 (11th Cir.), cert. denied, 129 S.Ct. 627 (U.S. 2008), it seems unlikely that the Rapanos split will be mended soon. Whether courts, regulators, and the public can continue to straddle this fundamental divide—and to endure the economic and environmental costs of uncertainty—remains to be seen.

Gary Shockley is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, in Nashville, and is a former chair of the TBA Environmental Law Section.

CAVEAT: Although the authors both work for the Department of Environment and Conservation, the opinions expressed are the opinions of the authors and not those of the Department.

We read with interest the article published in the March newsletter of the Environmental Law Section of the Tennessee Bar Association. The authors, Bill Penny and Richard Young, ask the question “are wet weather conveyances waters of the United States?” They then go on to present a rationale for their opinion that these conveyances are not waters of the nation. Since these concepts are important to understanding the scope of jurisdiction of the Water Quality Control Act over surface waters, we wanted to provide our very different views on this subject.

Penny and Young provided a explanation of the origins of the wet weather conveyance concept, but for readers who may not have read the original article, wet weather conveyances are part of what is considered “waters of the state” in Tennessee. Wet weather conveyances are defined in rule [Chapter 1200-4-3-.04(16)]. If a water course doesn’t meet all of the four stated characteristics of a wet weather conveyance described in the rule, then it is something else: a stream, lake, wetland, or river. (In the remainder of this article, we will refer to this collection of non-wet weather conveyances as “streams.”)

It is important to note that some of the issues discussed in the March article are part of a case recently argued before the Tennessee Water Quality Control Board. It is worthy of note that the department’s interpretation of what is a stream versus what is a wet weather conveyance was upheld. Other aspects of this issue are the subject of proposed legislation such as removing wet weather conveyances from being waters of the state.

The new concept in the March article that we would like to address is the idea that wet weather conveyances are not waters of the nation. Or as stated by the authors “if…a watercourse is in fact a wet weather conveyance, then regardless of the federal jurisdictional determinations, federal standards do not apply.”

The rationale presented by Penny and Young in the article has three parts and each subsequent position relies heavily on the accuracy of the previous one. Like the proverbial three-legged stool that endangers the sitter if even one leg is unstable, every part of this rationale must be true, or the conclusion suffers. We think this is the case here.

The three parts of the reasoning presented in the previous article are (1) that classified uses alone establish Clean Water Act jurisdiction; (2) wet weather conveyances in Tennessee are not classified and thus have no applicable criterial; and, (3) since EPA approves this classification-less status for wet weather conveyances every three years during the triennial review of water quality standards, EPA has accepted/endorsed that these are not waters of the nation.

We consider each of these points debatable. However, an analysis of points 1 and 3 requires a prediction of the legal interpretations of EPA, a federal agency fully capable of speaking for themselves. So we’ll tackle stool leg number 2.

The authors consider wet weather conveyances to not be classified waters for a simple reason, the statement found at the end of each section of Chapter 1200-4-4:

“All other waters named and unnamed within the [name] basin, with the exception of wet weather conveyances, which have not been specifically noted shall be classified…”

This provision, sometimes informally referred to as the “catch-all” statement, classifies the remaining streams within a basin for four uses: fish and aquatic life protection, recreation, livestock watering and wildlife, and irrigation. According to the article by Penny and Young, the specific exception of wet weather conveyances from the catch-all statement indicates that they are not classified waters and thus have no applicable criteria. We do not agree that this is true.

The catch-all statement captures all the streams not specifically listed and classified within a basin and provides them with basic designated uses, including the uses the authors refer to as Clean Water Act uses. But wet weather conveyances are not streams. Since the catch-all statement is for streams, it is proper to exclude wet weather conveyances, just as you would exclude cats from a list of canines. However that does not end the search for applicable criteria.

Chapter 1200-4-3-.02(6) says:

“Waters identified as wet weather conveyances …shall be protective of humans and wildlife that come in contact with them and shall not adversely affect the quality of downstream waters…”

This statement means that these conveyances must not have anything placed in them that would be acutely harmful to people or wildlife and nothing may be put in them that causes harm downstream. Those are the applicable criteria and they may be supplemented with those items from at least the recreational use criteria or the LWW criteria that are protective of these uses.

Let us be clear on this. Even if one criterion for a use applies to a wet weather conveyance, that does not mean that all the criteria for that use apply. For example, if the department ruled that a recreational mercury criterion applied to a wet weather conveyance, that does not mean that the color criterion for recreation is also applicable. Only those criteria that provide the established level of protection apply. Color is an aesthetic criterion, not a human health based one.

Wet weather conveyances are what they are. They are watercourses that are not streams, but they are far from lifeless, providing habitat for certain types of animals. And people come in contact with them, perhaps as often or even more often, than they do other watercourses. They are within the scope of the Water Quality Control Act and when EPA approves Tennessee’s water quality standards, EPA approves the level of the protection given them in those rules.

Alan Leiserson and Greg Denton work in the Office of General Counsel for the Tennessee Department of Environment and Conservation.

TDEC’s answers (written by Alan Leiserson and Andy Binford) are in bold below.

1. The reporting requirement applies to owners and prospective owners. Prospective owners may not ultimately purchase the real estate that was tested. Are they in violation if they do not report the test results to TDEC, even if the transaction doesn't proceed?

Yes, they would be. An earlier proposal during the rulemaking process was written in terms of any person with knowledge. In response to a comment, we narrowed it to just the owners and prospective purchasers. If we were to interpret it as only applying to situations when the transaction goes through, that would be interpreting the "prospective purchaser" out of the rule.

2. The requirement applies to owners and prospective owners. Will consultants, laboratories, counsel, or other third parties be liable if the owner or prospective owner doesn't report the results, even if those parties are located out of state?

No, these parties reap the benefit of the narrowing referred to in item 1.

3. The requirement applies to owners and prospective owners of property used for commercial or industrial purposes. What if the property being tested is being considered for rezoning, say from agricultural to commercial or industrial?

Zoning is not a reliable indicator of “property used for commercial or industrial purposes” under this rule. Not all counties have county-wide zoning; Land use is not always compliant with zoning; some parcels have a grandfathered land use. Some property that is zoned for agriculture has a use that is commercial. Also there are many examples in which hazardous substances have been dumped on agricultural land. In our view the disposal is a commercial or industrial use of land.

4. The requirement applies if "any contamination" is discovered. Does this include constituents that the consultant believes may or could be naturally occurring, based on the local geology? Does this depend on the detectable limits of the laboratory's equipment and the limits requested by the consultant and user?

The language is silent on the source. The language does refer to three thresholds for concern. If those thresholds are not exceeded it does not require reporting.

5. The requirement applies to discovered groundwater or perched water contamination. Does this include sampling taken from, for example, a geoprobe hole, a well that has not been fully purged and developed and therefore may not provide as reliable results?

Yes, if results of sampling from a geoprobe hole or a well that was not fully purged and developed meet the criteria for reporting under this rule, these results are to be reported. Typical problems with these types of holes or wells are false positives of inorganic constituents such as lead or arsenic due to turbidity or sediment in the samples. In addition to reporting the results, if it is believed that there are false positives, then also include pertinent information that would demonstrate whether or not the results are due to sediment in the samples or other issues.

6. The requirement contains a two-prong test. First, the water must be currently used as potable water. ASTM and EPA AAI standard Phase II ESA's do not include a water user survey. This will now be required as a follow up if contamination is found. What type or level of survey will suffice? Some municipalities prohibit potable use of groundwater wells within their boundaries. If the property is inside that municipality's limits, is that enough? Is a "windshield survey" sufficient?

If there is a water supply well on the property, within ½ mile of the property or the contaminant plume, the water should be considered currently used. (One half mile comes from the site specific criteria section.) Further, we understand that some municipalities prohibit installation of potable ground water wells. However, existing wells at the time of the prohibition would be grandfathered in and allowed. Therefore, even in municipal areas with prohibition, potable water wells are possible. Methods to verify water use will depend on the area and it is the responsibility of the reporting party to determine what is appropriate for that area. Several suggestions may be to check with water companies to see if there are properties without water hook ups, check Division of Water Supply well records, door to door survey, mail out survey, and/or windshield survey. If one is concerned that the cost of the investigation is burdensome, there is always the option of just reporting.

7. The second prong of the reporting obligation is triggered under two conditions. First, it is triggered if the water "exceeds general use criteria." Does this mean that the tester must affirmatively determine the water's designation? How is that done? The second condition is if the environmental professional concludes that the water poses [a risk]. How is an environmental professional defined under this regulation? What might be an acceptable example of an environmental professional, who has detected contaminated groundwater, learned that it is being used for potable purposes, properly concluding that it does not pose a risk?

First, under these rules all ground water not otherwise classified is now classified as general use. Rule .07(4)(b) Water in the zone of aeration is addressed in rule .07(3). The department can be contacted it there is a question about whether the ground water has been classified in another category. The rule intentionally left environmental professional undefined out of concern for unintentionally leaving a profession out. Licensed professions with relevant experience such as geologists and engineers clearly are included. If anyone wonders if some profession would qualify, please ask us.

When the water is used as potable and exceeds the general use criteria, then reporting is required without any decision to be made by the environmental professional. Next comes the language, “or if an environmental professional engaged by such owner or prospective purchaser reasonably concludes…” there is a substantial threat to human health or safety such as explosion hazards or vapor intrusion hazard to area buildings. We understand this question to arise from the “including, but not limited to” language. Generally, we expect that the general use criteria would give the answer as to whether drinking posed a risk. However, there might be an unusual situation in which many contaminants were present at levels just below the MCL levels. Since MCLs are set on the basis of exposure to a single contaminant, an environmental professional could reasonably conclude that a risk warranting reporting is posed by virtue of a synchronistic effect from many contaminants, even though all are below MCL levels.

LeAnn Mynatt is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., in Knoxville and is a former chair of the TBA Environmental Law Section.

Alan Leiserson is Legal Services Director for the Tennessee Department of Environment and Conservation.  Andy Binford is Director of the Division of Remediation.

New SPCC Rules to Become Effective in 2010

By Gene M. Bailey, P.E.

The Environmental Protection Agency has concluded a multi-year process of significant revisions to the Spill Prevention Control and Countermeasure (SPCC) rules that govern ownership and operation of facilities that store more than 1,320 gallons of oil aboveground or 42,000 gallons underground (not otherwise subject to typical UST programs). The Oil Pollution Prevention regulation (40 CFR 112) applies to a facility if stored oil can be reasonably expected (if a release occurs) to discharge oil in harmful quantities into or upon navigable waters of the United States. The most recent delay issued by EPA has now set January 14, 2010 as the effective date of the most recent December 2008 amendments. However, the majority of SPCC rules are to be implemented by July 1, 2009.

In review, original SPCC rules were published in 1973, with the first set of significant revisions published in 2002. Another significant SPCC revision was issued in December 2006, with the latest rule revision completed in December 2008.

EPA is careful to point out that no real compliance dates have changed for facilities that were in operation prior to August 16, 2002. These facilities are to follow existing SPCC plans on file with the facility and can make adjustments that reflect these new rules by amending plans immediately, or to wait for their facility three or five year recertification period to expire before making amendments to their plan.

The primary requirement of the SPCC rule has been the preparation of an SPCC Plan. The SPCC Plan sets forth requirements for prevention of, and the specifics steps to employ as a response to, a release of oil from the facility. The following discussion of components of the SPCC plan is general in nature and the reader is encouraged to consult the rule itself for all the various term definitions, exemptions, and related requirements to determine if your particular facility is in fact regulated and what specific requirements apply. The following discussion is partly taken from the Utility Solid Waste Activities Group January 2007 SPCC Workshop held in Memphis, Tennessee, presented by William R. Weissman and Aaron J. Wallisch.

Self-Certifying Facilities
Facilities with 10,000 gallons or less of aggregate above ground oil storage capacity, and with no individual container greater than 5,000 gallons are now qualified as a Tier I facilities as provided in the December 2008 amendments. Tier I facilities can complete an SPCC plan template found at Appendix G to 40 CFR 112 and self certify the plan. Tier II facilities have individual containers above 5,000 gallons, but yet are still below the 10,000 gallons of aggregate capacity. Tier II facilities may still self certify but must fulfill all requirements of the SPCC plan found at 40 CFR 112.7.

SPCC Plan Formatting
Facilities can employ equivalent or alternative SPCC plans such as Integrated Contingency Plans (ICP) that incorporate other facility issues such as storm water compliance. Multi-facility plans can also be employed into a single plan, such as an electric power company with multiple substation locations. For facilities larger than a Tier I and Tier II criteria, plans must be certified by a Professional Engineer (PE). Most states regulate the use of this term and the practice of Engineering, and each PE is cautioned to consult with local State boards with regard to stamping these plans with out-of-state PE seals.

Review and Amendment of Plans
SPCC plans must be reviewed and re-certified every five years. Template language that must be utilized in the certification language by the PE and/or Owner is included in 40 CFR 112.5(b).

Containment
Bulk storage containers must include sized secondary containment for the container, in addition to other requirements noted in the rule. Owners/operators of oil-filled equipment (e.g., electrical transformers, hydraulic reservoirs) are not required to provide sized secondary containment, subject to certain requirements noted in the rule such as spill history and commitment of manpower for spill scenarios.

Inspection records
A regular inspection program for all tanks and regulated equipment must be included in the SPCC plan. Events such as storm water bypass from containment areas must be inspected and documented in the SPCC program. Inspection records must be readily accessible and maintained for 3 years.

Training
Periodic training must be addressed in the SPCC plan. SPCC training is only required for oil-handling employees and the training can be limited to matters relevant to the facility; however, adding SPCC training topics to existing training sessions can be allowed, as long as the training is documented with the SPCC records. Training can be implemented by in-house staff.

Security
Security requirements are now more performance based and depend on the particulars of the given facility (i.e. rural vs. urban). Certain specifics regarding the protection of tank valves and openings must be addressed. Other issues such as fencing and lighting can be relative to the location of the site.

Gene M. Bailey, P.E. is Principal at Fisher & Arnold Environmental and can be reached at 888-583-9724 or gbailey@fisherarnold.com.

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