Fourteen states have responded to the EPA’s June 22, 2018, request to voluntarily submit information about facilities that produce, use, or store hazardous substances (HSs) designated at 40 CFR part 116 (Clean Water Act [CWA] Listed Hazardous Substances), the CWA HS they store, historical discharges of these HSs to waterways, and any state requirements relating to preventing discharges of the HSs into waterways.
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The survey was sent to states as part of the Agency’s proposal not to promulgate regulations that would impose new requirements to prevent discharges from facilities that possess reportable quantities of CWA HSs (June 25, 2018, Federal Register (FR)). While the data provided by some states are extensive, there is little consistency from state to state on the kind and amount of the data available, which would justify a CWA HS Spill Prevention, Control, and Countermeasure (SPCC) program.
Background
Section 311(j)(1)(C) directs the EPA to establish “procedures, methods, equipment, and other requirements” to prevent discharges of both oil and HSs. The Agency has implemented its obligation to control discharges of oil through its SPCC regulations (40 CFR 112). 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 HSs. That proposal was never finalized.
The issue was dormant 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 spill 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 HS obligations under 311(j)(1)(C). In February 2016, a U.S. District Court entered a Consent Decree between the EPA and the plaintiffs establishing a schedule under which the EPA was to sign a notice of proposed rulemaking pertaining to the issuance of the HS regulations and take final action after notice and public comment on the proposal.
Other Programs Provide Protection
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 HSs 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 these elements can be found chiefly in the existing SPCC regulations (the Agency notes that HSs 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 asserted 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).
Fish Kill Data and Little Else
The survey included eight questions intended to fill in a picture of how many facilities in a state have HSs on-site, how many HS spills have occurred at these facilities over the past 10 years, whether these spills have affected public water systems (PWSs) and caused fish kills, and whether the states have regulations governing HS spills.
The responses vary greatly, from no information at all (e.g., some states had no data on how many facilities possess CWA HSs or how many HS spills have occurred) to hundreds of pages of data on fish kill incidents. Many of these incidents were associated with natural conditions and were not caused by facility HS spills.
Minnesota responded to the most questions by far and provided the most data in nearly 500 pages. But even Minnesota was not able to determine if 19 reported incidents that occurred after January 2010 and that caused PWSs to increase monitoring, temporarily shut down service, or issue a health advisory resulted from the release of CWA HSs. Texas reported many fish kills associated with chlorine discharges. Maryland noted that it is sometimes difficult to determine the source of discharges that cause fish kills. California’s response described only two incidents. Hawaii said it was not aware of any PWS surface water intake affected by the discharge of a CWA HS.
Again, it would not appear that, collectively, these responses alone would cause the EPA to change its mind about not promulgating a national rule that facilities with threshold amounts of HSs develop SPCC plans specifically for those substances.
The EPA’s notice of the survey results was published in the February 19, 2019, FR.