In response to a settlement with environmental groups and a court order, the EPA has taken the first step to fulfill its obligation under Clean Water Act (CWA) Section 311(j)(1)(C) to issue regulations regarding discharges of hazardous substances from non-transportation-related onshore facilities. Specifically, the EPA is proposing to take no action, that is, promulgate no regulations that would impose new regulatory requirements to prevent discharges from facilities that possess reportable quantities of about 300 hazardous substances listed at 40 CFR 117.3.
In its proposal (June 25, 2018, Federal Register (FR)), the Agency states that, nationwide, the frequency of hazardous substances discharges with “impacts” does not in itself warrant a new regulatory program. But more importantly, the Agency believes that existing regulatory programs implemented by the EPA itself, other federal agencies, and the states are sufficient to address the risk of onshore hazardous substances discharges.
SPCC Plan for Hazardous Substances
Section 311(j)(1)(C) directs the EPA to establish “procedures, methods, equipment, and other requirements” to prevent discharges of both oil and hazardous substances. The Agency has implemented its obligation to control discharges of oil through its Spill Prevention, Control, and Countermeasure (SPCC) Plan. Also, in 1978, the EPA proposed to require that facilities subject to permitting requirements under the National Pollution Discharge Elimination System (NPDES) develop SPCC plans for hazardous substances. That proposal was never finalized.
The issue was mostly dormant for decades until 2014 when a spill at a storage facility in West Virginia’s Kanawha Valley released over 10,000 gallons of 4-methylcyclohexanemethanol, a chemical used to clean coal. The chemical contaminated the Elk River and deprived nearly 300,000 people of clean tap water for a week.
The following year, environmental groups sued the Agency, demanding that it meet its hazardous substances obligations under Section 311(j)(1)(C). In February 2016, a U.S. District Court entered a Consent Decree between the EPA and the litigants establishing a schedule under which the EPA was to sign a notice of proposed rulemaking pertaining to the issuance of the hazardous substances regulations and take final action after notice and public comment on the proposal.
Frequency and Impacts
Using data from the National Response Center (NRC) covering 2007 to 2016, the EPA identified 9,416 reports of CWA hazardous substances discharges. Of these, 3,140 reports indicated that the discharges reached water. Within this universe, 2,491 were identified as CWA hazardous substances discharges that originated from non-transportation-related sources. Of this total, 117 reports (4.7 percent) included impacts (e.g., evacuations, injuries, hospitalizations, fatalities, waterway closures, and water supply contamination).
The Agency also found that 13 CWA hazardous substances accounted for 90 percent of all discharges to water and 80 percent of all discharges in the 117 incidents with impacts. The most common hazardous substances identified in the 117 discharges with impacts were polychlorinated biphenyls (PCBs), sulfuric acid, ammonia, and chlorine.
Existing Regulatory Programs
The Agency’s main argument to support no action is that the discharge prevention, containment, and mitigation elements that can ensure SPCC-equivalent regulation of onshore facilities with hazardous substances already exist in multiple federal regulatory programs, as well as state programs. According to the Agency, the nine basic elements are safety information about the chemicals; a hazard review; a mechanical integrity program; personnel training; incident investigations; compliance audits; secondary containment; emergency response plans; and coordination with state and local emergency responders.
All of these elements can be found in and are required across a range of EPA programs, states the Agency, chiefly the existing SPCC Plan (the Agency notes that hazardous substances are sometimes mixed with oil); the NPDES Multi-Sector General Permit (MSGP) for Industrial Stormwater; the Clean Air Act’s Risk Management Program; several sets of regulations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); Resource Conservation and Recovery Act (RCRA) hazardous waste regulations; and regulations issued under the Emergency Planning and Community Right-to-Know Act (EPCRA).
Moreover, the Agency asserts that the program elements are also present at least in part in regulations implemented by the Occupational Safety and Health Administration (OSHA), the Mine Safety Health Administration (MSHA), the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), and the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE).
Some states have also established their own discharge prevention provisions relevant to CWA hazardous substances, adds the EPA.
“Based on EPA’s analysis of the frequency and impacts of reported CWA hazardous substances discharges and the existing framework of EPA regulatory programs and implementing regulations, EPA is not proposing additional regulatory requirements at this time,” the Agency states in its conclusion.
The proposal includes several regulatory options the EPA considered and rejected, including a prevention program comprising all the nine elements listed above, as well as a targeted prevention program comprising a portion of the nine elements. The proposal requests public comments on these two options.