ILMA Compoundings - October 2018 - 53

WASHINGTON LANDSCAPE

EPA Reverses Course on
SPCC Rulemaking
By Daniel Bryant

U

nder the settlement terms of a
"sue-to-settle" lawsuit1 entered
into during the Obama
administration, the EPA agreed to
promulgate a rule expanding its Spill
Prevention, Control and Countermeasure (SPCC) program to include tanks
storing "hazardous substances" (HS).
Environmental groups sued the EPA
over the failure to adopt a version of
SPCC for HS, citing several chemical
spill incidents that were reported
in the media. The court-approved
settlement included an aggressive
rulemaking schedule, with a final rule
to be promulgated in 2019.2
The EPA's SPCC program, promulgated under Section 311 of the Clean
Water Act (CWA), is applicable to any
manufacturing entity that stores 1,320
gallons or more of "oil" (if stored in
above-ground storage tanks) or 42,000
gallons (if stored in underground
storage tanks) that could potentially be
discharged into or on the "navigable
waters of the U.S."
Facilities subject to the SPCC
regulations must write and implement a plan certified by a registered
professional engineer that effectively
lays out how the facility operator will
keep an oil spill from leaving the "four
corners" of the facility.
The SPCC requirements for oil have
been "on the books" for decades now,
and most companies within industry,
including ILMA members, are very
familiar with the requirements of the
program. However, CWA Section 311
also instructed the EPA to develop and
implement similar requirements for HS.3

In a proposed action responsive to
the settlement terms, the EPA has now
determined that additional requirements under its SPCC program for
HS are not needed because existing
laws and regulations are sufficient
to prevent discharges of hazardous
substances under the CWA. The EPA
believes it has fulfilled its obligation
under the settlement terms, as stated
in the proposed action: "Based on
the reported frequency and impacts
of identified CWA HS [hazardous
substance] discharges, and the Agency's
evaluation of the existing framework of
EPA regulatory requirements relevant
to preventing CWA HS discharges,
EPA has determined that 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, providing additional
support for this proposed action."
ILMA submitted comments on
the proposed action, advocating that
the EPA finalize its approach that no
additional regulations were necessary.
Beyond the current SPCC program,
there are numerous other federal rules
in place that obviate the need for further regulatory requirements. The EPA's
assessment finds that existing laws and
rules, such as for the National Pollution
Discharge Elimination System, the
Resource Conservation and Recovery
Act and the Risk Management
Program, among several others, provide
ample environmental protection.

As the agency noted also in its
proposed action, during 2007-16, the
National Response Center received
285,867 reports of releases of all
substances. Of those reported releases,
only 9,416 (3.3 percent) were found to
be HS. Further, only 2,491 (less than 1
percent) were found to have originated
from non-transportation sources.
Finally, ILMA noted that the EPA's
proposed action for HS is also consistent with and a response to President
Donald Trump's executive orders 13771
and 13777, aiming to reduce the overall regulatory burden on industry.
The proposed action is a welcome
development for industry, as additional regulations are not envisioned.
However, if the EPA elects to finalize
its approach, it is almost certain to
face legal challenges from environmental groups and other third parties. For
now, though, it appears that industry
may not have to contend with yet
another regulation.
1 The Trump administration's EPA has sought to
curb "sue-and-settle" lawsuits, such as this one.
2 ILMA has previously commented to the
Commerce Department that if promulgated as
a "drop in" to the existing SPCC regulations, the
new rule would result in substantial annual costs.
3 The agency actually commenced a rulemaking process in the late 1970s to start the process,
but a final rule was never produced.

.

Bryant serves as regulatory
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be reached
at 202-386-7670 or dbryant@bmalaw.net

53
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