The genesis for many new environmental regulations in the United States is legal action by environmental groups citing application of existing environmental laws. The pending regulation regarding hazardous materials is just the most recent example.
On February 16, 2016, the Environmental Protection Agency (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…”
Expanding the SPCC Rule
Essentially, this is an expansion of the existing Spill Prevention Control and Countermeasure (SPCC) rule to include a much broader list of chemicals. To get an idea of the potential list of chemicals that may be included in the new regulation, you might want to review the list of hazardous chemicals in 40 CFR Table 116.4A “List of Hazardous Substances.”
The SPCC rule and the basis for this legal action are found in the Clean Water Act. Specifically, the Congress was directed to “…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).
Providing additional fodder for the legal action were recent spill events. In fact, one of the four recent chemical spills cited in the complaint by the environmental groups was the high profile January 2014 spill from Freedom Industries in West Virginia. As you may recall, more than 5,000 gallons of 4-methylcyclohexane methanol were spilled (from above ground storage tanks) into the Elk River, leaving some 300,000 without drinking water.
While this was legal action brought by environmental groups against the EPA to “force their hand,” this new regulation seems to be aligned with the EPA’s initiatives, which include focus on industrial and chemical facilities and Environmental Justice.
Further, Environmental Justice was a cited factor in the decision by the court in this case. The Facts in the court document include: “U.S. Coast Guard data indicate that hazardous-substance spills from nontransportation-related onshore facilities pose a disproportionate threat to low-income communities and communities of color.”
Preparing for New Regulation
While the proposed regulation will be more than a year from now, you may want to review the list of hazardous chemicals in Table 116.4A (above) to see if this may apply to your facility. This would also be a good time to review your existing SPCC Plan to make sure it is up-to-date and implemented.
Increased Environmental Compliance
As an aside, in the past few weeks, I have attended two conferences where senior EPA officials have presented (Defense Research Institute – Toxic Tort and Environmental Law conference and Air and Waste Management). In both cases, the EPA representatives focused on the agency’s “Next Generation Compliance.” The overriding goals of this program are increased environmental compliance at more facilities with fewer resources at the agency. At a minimum, you should be aware of this program and initiative.
We’ll continue to monitor these and other environmental regulatory developments, and in the meantime, if you have any questions, please feel free to contact me (jbolin@dragun.com) at 248-932-0228, ext 125.