EPA has agreed to conduct a rulemaking regarding the establishment of regulations to address potential spills of hazardous substances similar to the existing “Spill Prevention, Countermeasure and Control” (SPCC) program for oil. In a consent decree reached with the Natural Resources Defense Council (NRDC) and other environmental groups, published in the Federal Register on February 3, the agency agreed to issue a proposed rulemaking within two years of the final date of the consent decree “pertaining to the issuance of the Hazardous Substance Worst Case Discharge Planning Regulations.” A final rule would be required within 30 months of the proposal.

The consent decree follows litigation filed by the environmental groups in the wake of EPA’s June 2018 decision to reverse course from an Obama-era agreement to initiate a rulemaking to impose SPCC requirements for hazardous substances. EPA based that decision on its belief that existing regulations are adequate to meet its obligations under the Clean Water Act (CWA) and no new regulatory program is needed. See my prior post for more details on EPA’s determination.

Plaintiffs allege that EPA had a duty under Clean Water Act (“CWA”) section 311 (j)(5)(A)(i), 33 U.S.C. § 1321(j)(5)(A)(i), to issue regulations that require an owner or operator of a non-transportation-related onshore “facility described in subparagraph (C) to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of . . . a hazardous substance” (the “Hazardous Substance Worst Case Discharge Planning Regulations”) by August 18, 1992.

The litigation was initiated by NRDC, Clean Water Action, Environmental Justice Health Alliance, and the Just Transition Alliance, based on the agency’s alleged failure to move forward with what the groups consider long-overdue and nondiscretionary regulations:

Despite its duty to issue worst-case hazardous-substance spill regulations by August 1992, EPA missed its deadline. These regulations are now more than twenty-five years overdue. EPA’s decades-long failure to issue worst-case hazardous-substance spill regulations therefore violates the Agency’s nondiscretionary duty.

By failing to act, the groups contended at the time that EPA

… leaves the communities closest to the most dangerous chemical facilities in the country without any assurance that those facilities are – as Congress mandated – adequately planning to prevent and respond to catastrophic chemical spills, including those caused by floods, fires, and hurricanes. These communities, which are disproportionately low-income or communities of color, are entitled to all the protections for public health, drinking water supplies, and the environment Congress mandated in the Clean Water Act.

While the settlement requires EPA to conduct a rulemaking, the direction and content of that rulemaking are not prescribed. The upcoming election likely will dictate those terms.