Key Notes:

  • U.S. EPA must create new regulations for hazardous substances.
  • We anticipate the new regulations will mirror the Spill Prevention, Control, and Countermeasure regulations in place for oil.
  • Many industrial facilities nationwide will be affected by the new regulations.

Under a recent consent decree, the United States Environmental Protection Agency (U.S. EPA) must create new regulations that establish procedures, methods, equipment and other requirements to prevent hazardous substance discharges. This consent decree, lodged on February 16, 2016, resulted from a citizen suit filed in July 2015 in the U.S. District Court for the Southern District of New York by three environmental groups: Environmental Justice Health Alliance for Chemical Policy Reform, Natural Resources Defense Council and People Concerned about Chemical Safety. Environmental Justice Health Alliance for Chemical Policy Reform v. U.S. EPA, S.D.N.Y. No. 15 Civ. 5705 (SAS) (Feb. 16, 2016). This case has spurred change that will affect many industries.

Complaint

In the complaint, the environmental groups essentially accused U.S. EPA of failing to meet its duty under the Clean Water Act (CWA), alleging that the agency was unreasonable for not promulgating hazardous substance spill prevention regulations as it was mandated to do 43 years ago. Under the CWA, Congress stated that “as soon as practicable after October 18, 1972, and from time to time thereafter, the President shall issue regulations … establishing procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances … from onshore facilities … and to contain such discharges.” Clean Water Act, Pub. L. No. 92-500, § 311(j)(1), 86 Stat. 816, 868 (codified at 33 U.S.C. § 1321(j)(1)(1972)).

The president delegated this responsibility to the U.S. EPA administrator in 1973. U.S. EPA did establish procedures, methods, equipment and other requirements to prevent oil discharges in the Spill Prevention, Control, and Countermeasure (SPCC) regulations, but did not do the same for hazardous substances.

According to the complaint, U.S. Coast Guard data show that thousands of self-reported hazardous substance spills occur every year at onshore facilities, and many of those spills reach bodies of water, endangering public health. For example, in West Virginia, a facility’s above-ground storage tank spilled over 5,000 gallons of a hazardous material into the Elk River, contaminating the water supply and leaving nearly 300,000 people without clean drinking water. The complaint listed other significant spills in three states and noted that these spills disproportionately affected low-income communities and people of color. Thus, the environmental groups asked the court to compel U.S. EPA to issue regulations to prevent and contain hazardous substance spills at non-transportation-related onshore facilities, including above-ground storage tanks.

Settlement

U.S. EPA must sign a notice of proposed rulemaking for the hazardous substance regulations no later than 18 months from the filing date, February 16, 2016. The consent decree allows U.S. EPA to extend the deadline to 28 months if it intends to publish notice to collect information about the rules. U.S. EPA must take final action on the rules no later than 14 months after publication of the proposed rules.

Who Will the Regulations Affect?

The rules presumably will cover hazardous substances defined by U.S. EPA and apply broadly to many industrial facilities nationwide. The regulations most likely will affect any facility using and storing significant amounts of hazardous substances, including those that engage in manufacturing, primary metal production, metal fabrication and petroleum processing.

U.S. EPA has not commented on the specifics of the forthcoming regulations. We anticipate that they will resemble the SPCC rules in place for oil storage, with a specified threshold amount that will trigger compliance requirements for facilities to develop tailored plans to prevent, contain and respond to hazardous substance spills.