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Over 22,000 public comments were received by the time the public comment period closed on August 24, 2018 in response to the EPA’s proposed ruling to address spill prevention regulations for hazardous substances. In the latest development in a 40-year-old effort to establish spill control regulations for hazardous substances, the EPA received an immense backlash after proposing a ruling that no new rules for spill control of hazardous substances are needed. On June 25, 2018 the EPA published their proposed rule outlining the procedures they used to deduce that no action was needed to comply with CWA requirements to protect the public from spills of hazardous substances. Since proposing that no formal regulations are implemented, over 22,000 comments were submitted during the 60-day comment period ending on August 24, 2018. Several influential commenters backed by prominent environmental groups expressed urgency that the existing regulations are inadequate to meet the EPA’s obligations under the Clean Water Act. In other words, the EPA can be sued again if it stands by its inaction. The EPA is expected to take public comments into account and is scheduled to select a final action by mid- to late-2019. If the EPA does take action, it could impact between 101,000 and 108,000 manufacturing and industrial facilities across the United States.

Litigation Background

In 1978, the EPA originally initiated the process to require owners and operators to develop SPCC Plans for hazardous substances through the Clean Water Act. However, the EPA did not finalize the proposed rule, and there is no information to explain why the proposal was never finalized. In 2015, several environmental groups sued the EPA for never establishing spill requirements for hazardous substances in the landmark case Environmental Justice Health Alliance for Chemical Policy Reform, et al. v. U.S. Environmental Protection Agency. In a big win for environmental groups, the EPA agreed to a settlement and prepared to make groundbreaking changes to its Spill Prevention, Control, and Countermeasure (SPCC) regulations. As part of the Consent Decree, the environmental groups required the EPA to sign a notice of proposed rulemaking that would lay out the EPA’s procedures for implementing hazardous substance spill prevention regulations for non-transportation, onshore facilities. However, after the settlement was finalized, the administrations changed, and the rule published on June 25, 2018 changed drastically from what was expected from the prior administration’s EPA. Environmental groups were seeking the EPA’s rule to require Facility Response Plans (FRPs) that would “reduce the impact and severity of oil spills and may prevent spills because of the identification of risks at the facility”, with the intention of better-protecting communities from industrial spills. Further, state and local governments could use the non-confidential data collected from FRPs to greatly assist local emergency preparedness planning efforts.

Why did this come up again after nearly 40-years?

The highly publicized lawsuit filed in 2015 was based on massive discharges of hazardous chemicals from four major facilities across the country. One facility’s leak led to almost 300,000 people losing access to safe drinking water for a week in West Virginia. After the spill, state environmental officials said the facility had the only permit it was required to have: an industrial stormwater permit and two U.S. congressmen stated that the spill exposed regulatory gaps in the country’s chemical control laws. The lawsuit alleged that the facilities involved not only failed to regulate their hazardous substances storage tanks but cited hundreds of spills from those facilities that disproportionately harmed nearby underserved communities. Environmental groups further argued that the EPA failed to comply with their duty to issue regulations that adequately prevent and contain spill of hazardous substances at facilities. As a result, the terms of the settlement required the EPA to take a hard look at their regulations and make modifications to the framework where necessary to better comply with the original intent of the Clean Water Act.

Could my facilities be affected if regulations change?

As a result of the settlement’s requirements, many facilities that store any of the 350 hazardous chemicals could be required to develop an SPCC plan for the first time. With the SPCC program broadening beyond oil to account for potential threats posed by other hazardous materials, the rulemaking could address new hazardous materials to be included, mandate increased secondary containment for storage containers and better spill tracking, and provide for enhanced spill containment procedures. These regulations would affect non-transportation, onshore facilities and would include above-ground storage tanks. The following table includes the potentially affected industries.

How can I prepare my facilities?

Depending on the EPA’s final action, facilities may be required to register any above-ground chemical tanks, obtain individual permits for each tank, and have enhanced state agency review of SPCC plans and stormwater pollution prevention plans (SWPPPs). You can prepare for the potential tightening of regulations by tracking the chemicals (including quantities) stored and equipment currently in use at each facility, compiling each facility’s spill history, and familiarizing yourself with any existing spill containment plans being implemented. The thought of additional SPCC reporting requirements is scary, but with Mapistry continuously meeting your facility’s needs you’ll be ready to hit the ground running. Mapistry is rolling out a new product suite to help facilities track their hazardous substances in real-time in addition to the SPCC suite already offered.

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