Hazardous Substance Spill Prevention: The Proposed Action is No Action at all!

The US Environmental Protection Agency (EPA) has issued its proposed rulemaking pertaining to the issuance of regulations for the prevention of spills or releases of Clean Water Act (CWA) hazardous substances. The proposal, published in the June 25 Federal Register, concludes that no additional regulatory requirements are necessary at this time.

EPA’s review of whether to propose new regulations to prevent releases of hazardous substances was prompted by a 2015 lawsuit that charged EPA with failure to comply with its duty under CWA Section 311 to issue regulations for the prevention and control of hazardous substance spills from on-shore facilities. A February 2016 Consent Agreement established a schedule for EPA to sign “a notice of proposed rulemaking pertaining to the issuance of the Hazardous Substance regulations” and take final action after notice
and comment.

The decision to take no action to develop additional regulations is based on EPA’s review of (1) the frequency and impacts of past releases of hazardous substances, and (2) other, existing regulatory programs that may already provide some level of prevention or control of hazardous substance spills. Within the 10-year period of the historical review, EPA found that hazardous substances, as defined under the CWA, accounted only for a small percentage of all spills or releases reported to the National Response Center (NRC), and that only a fraction of these reported releases reached and resulted in impacts to waterways. A few of the CWA-listed hazardous substances – notably polychlorinated biphenyls (PCBs), sulfuric acid, sodium hydroxide, ammonia, benzene, hydrochloric acid and chlorine – comprised the majority of releases. EPA also found that multiple regulatory programs – including NPDES requirements for industrial storm water discharges, the Risk Management Program (RMP) Rule, oil Spill Prevention, Control and Countermeasure (SPCC) requirements, RCRA hazardous waste management requirements and EPCRA reporting rules – to some extent addressed potential spills or releases of CWA hazardous substances and the means to prevent and control them. For example, releases of PCBs were commonly associated with transformer oil, which is to an extent subject to the SPCC rule requirements.

As an interesting aside, EPA proposed an SPCC rule for hazardous substances back in 1978(!) but apparently never finalized the rule.

EPA has invited comments on the proposed action (or inaction) and alternatives until August 24, 2018. For more information, visit the EPA web page at www.epa.gov/rulemaking-preventing-hazardous-substance-spills/proposed-rulemaking-clean-water-act-hazardous.