EPA Final Rule Declines to Expand Scope of SPCC Program
Chris Bryant
Global Waste Lead, Global EHS at 3M Corporate Environment, Health, Safety and Product Stewardship. Board Chairman, CHWMEG, Inc.
On September 3, 2019, EPA will promulgate a final rule declining to expand the scope of the Spill Prevention, Control, and Countermeasure (SPCC) regulations under the Clean Water Act (CWA) to address additional hazardous substances (HS).
The decision is somewhat of a reversal of an Obama era pledge to assess whether the scope of the SPCC program warrants expansion. EPA issued the final rule in response to a consent decree with environmental groups. On July 21, 2015, the Environmental Justice Health Alliance for Chemical Policy Reform, People Concerned About Chemical Safety, and the Natural Resources Defense Council sued EPA for failing to comply with an alleged duty to issue regulations to prevent and contain CWA HS spills from non-transportation-related onshore facilities, including aboveground storage tanks, under CWA Section 311(j)(1)(C). Environmental Justice Health Alliance for Chemical Policy Reform v. EPA, 15-cv-5705 (S.D.N.Y. July 21, 2015). On February 16, 2016, the United States District Court for the Southern District of New York entered a Consent Decree between EPA and the litigants establishing a schedule under which EPA was to issue a final rule on the issue.
Instead of issuing a rule to add HS to the scope of the SPCC program, however, EPA decided there is no need for new regulatory requirements under CWA Section 311(j)(1)(C) at this time. EPA explained that it believes existing regulations are adequate to meet its obligations under that provision and that no new regulatory program is warranted. EPA defended its decision by stating that, based on the reported frequency and impacts of identified CWA HS discharges, and EPA’s evaluation of the existing framework of EPA regulatory requirements relevant to preventing CWA HS discharges, the existing framework of regulatory requirements serves to prevent CWA HS discharges. Additionally, EPA identified relevant requirements in other Federal regulatory programs and determined that they further serve to prevent CWA HS discharges.