Hazardous Substances – SPCC Rule Coverage: Litigation Back on the Table?

The federal Clean Water Act (CWA)[1] requires that certain facilities adjacent to, or nearby, coastal and navigable waters, prepare plans for preventing and responding to spills of oil and hazardous substances into our nation’s waterways. The responsibility to implement the requirements and regulations for these plans was delegated to the President, and this regulatory authority was then further delegated to the Environmental Protection Agency (EPA). The EPA promptly enacted regulations for the oil portion of this requirement with the Spill Prevention, Control, and Countermeasure (SPCC) Regulations[2] to prevent or contain oil spills in 1973.

The Oil Pollution Act of 1990 (OPA) amended and expanded the requirements of the CWA to create major new authorities addressing oil and hazardous substance spill responses, including for certain higher-risk facilities to develop Facility Response Plans for worst-case oil and hazardous substance spills. Again, the EPA promulgated a rule to address the oil part of the statutes, but did not address hazardous substances.[3] Now, over twenty-five years later, the EPA still has not promulgated a rule addressing the prevention and containment of hazardous substance spills.

Consequently, this lack of regulation by the EPA led environmental groups to challenge the EPA in a suit in federal district court in July 2015. This case led to a judgment by the court, specifically a Consent Decree that gave the EPA up to 28 months, if necessary, to issue a rulemaking pertaining to Hazardous Substance Regulations. Instead, the EPA published a Proposed Rule on June 25, 2018, stating that the “EPA is proposing no new regulatory requirements under the authority of CWA section 311(j)(1)(C) at this time. This determination is based on an analysis of identified CWA [Hazardous Substance] discharges, and an evaluation of the existing framework of EPA regulatory requirements relevant to preventing and containing CWA [Hazardous Substance] discharges.”[4] The proposed rule was published for a public comment period, which ended in August, 2018 after receiving several thousand comments. While the EPA has not yet provided a final rule since receiving the public’s comments, it is anticipated that a final rule could be published sometime this year, possibly in September.

Sensing the writing on the wall, which seems to indicate that the EPA has no intention of creating a rulemaking for an SPCC-type plan to prevent and contain hazardous substance spills similar to that for oil-based substances that is already in place,[5] environmental groups have sent their Notice of Intent to sue the EPA under the citizen suit provision of the CWA.[6] In a letter dated October 26, 2018,[7] sent by the Natural Resources Defense Council (the letter also includes three other environmental organizations) to EPA Administrator Andrew Wheeler (Acting Administrator at the time of the letter), it states “For over twenty-five years, EPA has failed to act on its duty to issue worst-case spill response planning regulations for non-transportation-related onshore facilities that store or handle hazardous substances” (“worst-case hazardous substance spill regulations”). This letter now fulfills the requirement under the CWA that notice be provided to the Administrator sixty days prior to filing a CWA action.[8] While the sixty day notification period has now passed, as of the time of this article, the environmental groups have not yet filed suit against the EPA. However, they may be waiting for the publication of the final rule, and because they have already provided the required notification period, they will likely be ready to file suit on essentially the day the rule is published by the EPA.

The reluctance of the EPA to promulgate a rule for hazardous substances, notwithstanding the aversion to new regulations by the Trump Administration, possibly stems from the vast number and different types of hazardous substances that could come under the purview of such a rule. The list of potentially regulated hazardous substances is quite extensive, and any proposal to regulate those under SPCC-like Rules would certainly impact a wide-range of industries and manufacturers. Consequently, there is not going to be a one-size-fits-all approach such as what is provided in the SPCC and FRP for oil-based substances. Nonetheless, the clear language of the statute does seem to require the EPA to establish regulations for spill prevention and containment plans for hazardous substances as well as oil-based substances,[9] and that has not occurred to date. Therefore, this issue appears to be headed back to the courts for further litigation. Stay tuned for further developments.

[1] Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, 33 U.S.C. §§ 1251–1387

[2] See 40 C.F.R. part 112 – Oil Pollution Prevention.

[3] See “National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule,” 59 Fed. Reg. 47384 (Sept. 15, 1994).

[4] See Proposed Rule – Clean Water Act Hazardous Substances Spill Prevention (83 Fed. Reg. 29499 (June 25, 2018)),  section III. – Proposed Action.

[5] A change in rulemaking seems unlikely, not only based on the proposed rule, but particularly under the direction of the current Presidential Administration. However, clearly Presidents of both parties have failed to push for a rule for this subject, as this lapse in rulemaking has stretched for over 25 years.

[6] 33 U.S.C. § 1365(a)(2).

[7] See Letter to Andrew Wheeler, EPA Acting Administrator, “Re: Notice of Intent to Sue under Clean Water Act Section 505(a)(2) for Failure to Issue Response Planning Regulations for Non-Transportation-Related Onshore Facilities for Worst-Case Spills of Hazardous Substances, as Required by Section 311(j)(5)(A)(i)” October 26, 2018.

[8] 33 U.S.C. § 1365(a)(2), (b)(2).

[9] Using the word “shall” and providing a deadline in the statute for EPA to issue the regulation would appear to indicate a non-discretionary action.