In a recent “final action”, the EPA announced that it will not “at this time” promulgate new regulations to prevent spills of hazardous substances (HSs) under Clean Water Act (CWA) Section 311.
According to the Agency, the action fulfills the terms of a February 2016 consent decree the EPA reached with environmental groups, which was approved by the U.S. District Court for the Southern District of New York. In the decree, the Agency committed to issuing a notice of proposed rulemaking within 18 months and following that 14 months later with the “issuance of Hazardous Substance Regulations.” While no such regulations are being issued, the Agency says it reserves the right to take such action in the future. Given that environmental groups have argued that Section 311 requires that the EPA issue regulations, it would not be surprising to these stakeholders returning to court to try to force the Agency into doing so. Here we review the reasoning the Agency gives for its final action.
CWA Section 311
CWA Section 311(b)(3) prohibits the discharge of HSs into or upon navigable waters. In 1978, the EPA designated a list of CWA HSs and followed that in 1979 with reportable quantities (RQs) for those substances. Any discharge of an HS that exceeds its RQ must be reported to the National Response Center (NRC). In addition, 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 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 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 Section 311(j)(1)(C). The February 2016 consent decree followed.
In its final action, the EPA explains that new regulations are not necessary to regulate spills of HSs because the “existing cumulative framework of regulatory requirements adequately serves to prevent and contain CWA HS discharges.” In reaching this determination, the Agency made use of data from two sources—hazardous spills reported to the NRC and the results of voluntary surveys in which states provided information on the universe of potentially regulated facilities. The Agency concedes that the NRC data on HS spills are incomplete. In addition, because only 16 states responded to the survey, the EPA needed to extrapolate the data to potentially covered facilities nationwide.
Assessing Incidence Data
The EPA says its initial data-gathering efforts to inform its final action focused on assessing the scope of historical CWA HS discharges. The Agency analyzed CWA HS discharges reported to the NRC over a 10-year period to estimate the frequency of discharges. Specifically, for the period of 2007–2016, the EPA identified 2,491 NRC reports (less than 1 percent of all reports to the NRC for that period) as CWA HS discharges originating from non-transportation-related sources; impacts were reported for 117 of those discharges.
In June 2018, the EPA issued its survey to state, tribal, and territorial government agencies with custodial responsibility for data on CWA HS impacts to drinking water utilities and fish kills potentially caused by discharges of CWA HSs. The Agency reports that it received relevant responses from 16 states.
In its final action, the EPA acknowledges the limitations of the NRC data.
“The NRC database is based on notifications of CWA HS discharges and thus is dependent on the reporting individuals for completeness and accuracy of the information provided,” the Agency writes. “NRC reports are generally received and documented immediately following an incident, often before a facility has accurate and complete information about the discharge. There is no requirement to update the information reported to the NRC; sometimes, the information available in the database includes inaccuracies regarding the substance reported, the quantity reported, the source, and the nature or impacts of the discharge, among other elements of the report. Further, some discharges may not be reported to the NRC, or the NRC may be notified of discharges that do not equal or exceed the reportable quantity.”
Despite these limitations, the EPA says the NRC database is the best readily available source of relevant information on CWA HS discharges in the United States. Furthermore, the Agency disagrees with commenters who believe CWA HS discharges are more likely to be underreported than overreported.
“The EPA has no information to assess or characterize the uncertainty associated with information reported to the NRC, the extent of under-reporting (failure to report a discharge), or the extent of overreporting (discharges reported that are not subject to notification requirements). While EPA recognizes that past discharge history does not necessarily predict future discharges, the Agency believes the NRC data can provide insight into the extent of CWA HS discharges for the purposes of establishing the need for new regulatory requirements.”
The intent of the voluntary survey was to supplement the NRC data, says the EPA. States reported 148 HS discharges “with impacts,” which the Agency added to the 117 discharges with impacts found in the NRC data, adding up to 265 discharges with impacts from a total of 2,650 historical, in-scope CWA HS discharges.
Assessing Emergency Planning and Community Right-to-Know Act (EPCRA) or Tier II information also submitted by the states, the EPA estimated that 108,000 facilities would be potentially subject to any new regulations covering CWA HSs.
Other Regulatory Controls
The Agency concluded that, by itself, the collected data about HS discharges and their impacts do not support issuing new regulatory requirements under CWA Section 311. This finding is supported, the EPA continues, by the existence of other federal programs, as well as other state programs and industry standards, that “may also be effective in preventing and containing CWA HS discharges.” In its proposal as well as its final action, the Agency identified an analytical framework comprising nine “key prevention, containment, and mitigation program elements” that would constitute the core procedures, methods, and equipment for a discharge prevention program for CWA HSs. The nine program elements are safety information, hazard review, mechanical integrity, personnel training, incident investigations, compliance audits, secondary containment, emergency response plan, and coordination with state and local responders.
Furthermore, the Agency said it originally determined that these elements were addressed in 11 EPA regulatory programs: NPDES Multi-Sector General Permit (MSGP) for Industrial Stormwater; Clean Air Act’s Risk Management Program; SPCC; Pesticide Management; Pesticide Worker Protection; Resource Conservation and Recovery Act (RCRA) Generators; RCRA Treatment, Storage, and Disposal Facilities (TSDF); Underground Storage Tanks (USTs); EPCRA Hazardous Chemical Inventory Reporting; EPCRA Emergency Planning and Notification; and Effluent Guidelines and Standards for the Pulp, Paper, and Paperboard Point Source Category.
For example, the EPA states that the NPDES MSGP for Industrial Stormwater includes requirements that address six of the nine program elements: hazard review, mechanical integrity, incident investigations, compliance audits, secondary containment, and emergency response plan. In addition, the MSGP requires permitted facilities to develop, implement, review, and, if necessary, revise stormwater pollution prevention plans (SWPPP).
“The SWPPP is intended to document the selection, design, and installation of control measures to meet the permit’s effluent limits plus document the implementation (including inspection, maintenance, monitoring, and corrective action) of the permit requirements,” says the EPA. “The SWPPP must be prepared in accordance with good engineering practices and to industry standards. While the Agency recognizes that the SWPPP is not directly intended to address emergency and/or unanticipated oil discharges, as is the case with an SPCC plan, the core elements of a SWPPP enhance CWA HS discharge spill prevention.”
In their comments on the EPA’s proposal not to establish a new regulatory program, environmental groups argued against the Agency’s claim that other regulatory programs displaced the need for new and specific HS regulations. For example, regarding the EPA’s claim that the NPDES MSGP is a useful regulatory tool to prevent discharges of CWA HSs, the groups state:
“As an initial matter, the MSGP is not a spill-prevention rule. The MSGP is intended to mitigate pollution from stormwater runoff across industrial facilities. Hazardous-substance spills are not a type of stormwater discharge under the MSGP. Nor are they a type of ‘allowable non-stormwater discharge’ covered under the MSGP. Although the MSGP does contain provisions that touch on spill prevention, those provisions are extremely high-level and are not tailored to hazardous substances under the CWA.
“These provisions, while perhaps detailed enough for the context of permitting stormwater discharges under the NPDES program, are far from adequate to satisfy the CWA’s separate command that EPA issue specific spill prevention regulations for hazardous substances. Indeed, the provisions do not address hazardous substances at all, much less ‘establish procedures, methods, and equipment and other requirements for equipment’ to prevent hazardous-substance spills. The provisions do not even set forth the basic requirement that storage containers or tanks for hazardous substances be suitable for the substances at issue and the conditions of storage.”
The groups did note that the SPCC Rule is an ideal model for spill prevention and response regulations for HSs.
“The SPCC Rule has numerous features that could be adopted into a robust hazardous-substance spill-prevention rule,” wrote the groups. “As described by the EPA, the SPCC Rule requires non-transportation-related onshore facilities storing certain amounts of oil to develop and implement SPCC plans for oil spill prevention and response, ‘including a facility diagram, oil discharge predictions, secondary containment or diversionary structures, overfill prevention, requirements for inspections, transfer procedures, personnel training, and a five-year plan review.’”
The EPA notes that the SPCC regulations do apply to HSs but only when those HSs are mixed with oil. Furthermore, the Agency agrees that the SPCC regulations can serve as a valuable model in preventing HS spills at facilities that must comply with the SPCC program.
“While recognizing that containers and related equipment with only CWA HS are not regulated under SPCC as per the SPCC regulations, the Agency believes the application of SPCC prevention program elements still serve as a model for good engineering practice within SPCC regulated facilities and can provide collateral improvements resulting in overall spill prevention.”
In other words, the EPA is content to leave it to facility management to decide which SPCC provisions to apply to their HSs and when this should occur.
The EPA concludes:
“Based on an evaluation of the existing framework of EPA regulatory requirements, and the reported frequency and impacts of CWA HS discharges, the Agency is not finalizing any new spill prevention and containment requirements under CWA section 311(j)(1)(C) at this time. EPA believes there would be only minimal incremental value in requiring new prevention regulatory provisions. Further, there is no reason to believe that establishing what may be redundant provisions would alleviate discharges from facilities that disregard existing regulations.”