HazMat Spill Control Rules: What Did the Public Have to Say?

The EPA recently published a summary of comments it received at three meetings held to inform the public about the Agency’s upcoming proposed regulations to prevent spills of hazardous chemicals from onshore facilities and to contain spills that do occur.

The first meeting was held November 2, 2016, in Charleston, West Virginia, the site of a January 2014 spill from an aboveground tank owned by Freedom Industries. About 10,000 gallons of a hazardous chemical used to clean coal entered the Elk River just upstream from a large water treatment plant that supplies Charleston’s drinking water. The contamination deprived nearly 300,000 citizens of access to clean tap water for a week.

Two other virtual meetings were held in late November and early December.

Court Settlement

Following the spill, environmental groups went to court, arguing that the EPA had failed to meet its obligations under Section 311(j)(1) of the Clean Water Act, which directs the Agency to establish “procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore and offshore facilities, and to contain such discharges.”

Long-standing federal regulations are in place for oil discharges. Also, accidental releases of reportable quantities of hazardous substances are subject to reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). But onshore discharges of hazardous chemicals have gone unregulated by the EPA for more than 40 years, according to the groups.

The EPA agreed to sign a notice of proposed rulemaking pertaining to the issuance of the hazardous substance regulations no later than 28 months after the settlement date. Also under the settlement, within the next 14 months, the Agency must issue final regulations.

Strong Rule Needed

As summarized by the EPA, public comments in favor of regulation focused on enforcement, leak prevention, transparency, and public education. For example:

  • A strong enforcement mechanism, such as third-party audits with published results, is recommended to discourage criminal behavior. This could include spot checks since it is not realistic to check all facilities. Freedom Industries had not been inspected in 10 years.
  • Although industry resists the disclosure of chemical trade secrets, the public deserves to have knowledge of health hazards, including flammability and stability, of chemicals stored at a facility. Specific chemicals do not need to be disclosed for this to be possible.
  • The rule must protect water sources and provide publicly available information about where threats are located. For example, a map or database could be developed through which the public could query which facilities have spill insurance.
  • Facilities that store hazardous chemicals in quantities large enough to cause harm to people and communities must prepare plans for responding to a worst-case discharge in accordance with the Oil Pollution Act of 1990.
  • Secondary containment should be required, along with periodic inspections of primary and secondary containment, robust disclosure, monitoring, and notifications.
  • Facilities should be required to use inherently safer designs, similar to the 2015 revised underground storage tank standards.
  • Every aboveground storage facility that could affect downstream water supplies should be required to obtain insurance.

Duplication Should Be Avoided

Some commenters cautioned that any final rule should be used to fill existing regulatory gaps and not create duplicative requirements. For example:

  • The rule should be targeted, focused, and specific to address gaps. The EPA should take full stock of the web of existing requirements, including National Pollutant Discharge Elimination System (NPDES) provisions, source water assessment program, EPCRA, the Occupational Safety and Health Administration’s (OSHA) hazardous communication and flammable liquids programs, and state regulations. If there’s no risk to navigable waters, there’s no risk. Costs and benefits should be accurately calculated, and flexibility should be provided where possible.

The summary of comments is here.