Several years ago, April 5, 2016, to be precise, we shared news about expanding the applicability of the Spill Prevention Control and Countermeasure (SPCC) Rules to hazardous substances. As is the case with many environmental regulations, there has been a change.
How Did We Get Here?
Why was the Environmental Protection Agency (EPA) looking to apply the SPCC Rule to Hazardous Materials in the first place? The impetus was, essentially, three fold:
First, the Clean Water Act (CWA) states, “…as soon as practicable after October 18, 1972, and from time to time thereafter, the President shall issue regulations… (C) establishing procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances…” (emphasis added).
Second, in January 2014, there was a high-profile spill (of a hazardous substance) from Freedom Industries in West Virginia. As you may recall, more than 5,000 gallons of 4-methylcyclohexane methanol were spilled (from aboveground storage tanks) into the Elk River, leaving some 300,000 people without drinking water.
Third, on February 16, 2016, the EPA and environmental groups entered into a Consent Decree that requires the EPA to develop new regulations to “…prevent and contain hazardous-substance spills from non-transportation-related onshore facilities…”
SPCC for Hazardous Materials Questioned
Following the presidential election in 2016 – the viability of the number of environmental regulations, including the expansion of the SPCC rules, were called into question by the newly-elected administration.
On June 25, 2018, there was an official notice in the Federal Register regarding the agency’s position with respect to regulated hazardous substances under the Clean Water Act. In the Federal Register, the EPA states, “Based on an analysis of the frequency and impacts of reported CWA HS [hazardous substances] discharges and the existing framework of EPA regulatory requirements, the Agency is not proposing additional regulatory requirements at this time.”
And more recently, in the September 3, 2019, Federal Register final action was announced. “The Environmental Protection Agency (EPA or the Agency) is not establishing at this time new requirements for hazardous substances under Clean Water Act (CWA) section 311. This section directs the President to establish procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges.”
The EPA states that the rule is unnecessary because the “…existing cumulative framework of regulatory requirements adequately serves to prevent and contain CWA HS discharges.”
Final Action or a Pause in Regulation?
Though the EPA issued a notice of final action, we doubt this is the end of this story. In fact, the EPA leaves the door slightly ajar as they state, “The Environmental Protection Agency…is not establishing at this time new requirements for hazardous substances under Clean Water Act (CWA)…” (emphasis added). There may be additional litigation by National Resource Defense Counsel and others who were on the “winning side” of the 2016 Consent Decree. And, finally, should power change again in Washington D.C. in next year’s election, this and other environmental regulations may be given new life.
SPCC Rule Still has Wide Application
Putting aside the SPCC Rule as it relates to hazardous substances, this rule still has wide applicability to regulated substances. We find that these rules are often not well understood and can even trip up senior managers. Violation of the SPCC rules is a CWA violation. Remember… you don’t have to have an actual release to the environment to get a substantial fine.
We continue to encourage our clients to conduct a compliance assessment (including evaluation of SPCC requirements) sooner rather than later while the EPA is more focused on compliance over enforcement. If you need help with your environmental compliance program, contact Matthew Schroeder, P.E. or me at 248-932-0228.
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