Emergency Preparedness and Response, Regulatory Developments

The SPCC Outlook for Hazardous Substances

The EPA has issued its first biannual update of its work on a proposal for a final rule that would subject facilities holding hazardous substances to the same requirements applying to facilities holding threshold amounts of oil. The update indicates that the proposal is still in its early stages, and therefore, any views on what form a final rule will take would be premature. Hazardous substances differ from oil in many ways, including how they are handled, what they are intended to accomplish, how an accidental spill affects the public and the environment, and how such a spill is best controlled. However, given that any final action will be promulgated under the same section (indeed, the same phrase) of the Clean Water Act (CWA) that is the basis for EPA’s oil Spill Prevention, Control, and Countermeasure (SPCC) program, there is no reason to assume at this early date that the expected final rule will differ in major ways from the existing SPCC requirements.

Potentially affected facilities should closely follow EPA’s progress on this rulemaking. The SPCC facility requirements for oil are complex, covering containers, secondary containment, procedures to prevent oil spills, and measures to contain spills that do occur and the availability of personnel to effect containment. Much of this must be described in an SPCC Plan. While facilities already subject to the SPCC program would be in a strong position to adopt their SPCC plans to hazardous substances, there are thousands of facilities that do not hold threshold amounts of oil but do have on-site 1 or more of up to 350 hazardous substances that are likely to be covered by the expected rule. Such facilities may be faced with an entirely new set of obligations, which could be challenging for small businesses.

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