EPA Proposes to Promulgate No New CWA Section 311 Rules for Releases of Hazardous Substances


On June 25, the Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking (NPRM) (83 F.R. 29499 (June 25, 2018)) regarding Clean Water Act Hazardous Substances Spill Prevention.

“EPA has determined that the existing framework of regulatory requirements serves to prevent CWA HS discharges.”

Section 311(j)(1)(C) of the Clean Water Act (CWA) directs the President to issue appropriate rules to address spills of oil and hazardous substances from vessels and onshore and offshore facilities. EPA was delegated authority to issue such rules for non-transportation-related facilities and offshore facilities landward of the coastline. EPA’s initial Spill Prevention, Control, and Countermeasure (SPCC) oil spill rules were issued in December 1973, and later (and substantially modified) in 2002  (40 CFR Part 112).

In 1978, the EPA issued an NPRM for spills and releases of hazardous substances, but the proposal was never finalized. Years later, in July 2015, a group of environmental organizations filed a lawsuit against EPA in the U.S. District Court for the Southern District of New York, seeking a court order mandating that EPA finally issue new SPCC rules addressing spills and releases of hazardous substances. the case is Envtl. Justice Health All. for Chem. Reform v. U.S. EPA, No. 15–cv–05075. On February 16, 2016, the District Court entered a Consent Decree between EPA and the litigants establishing a schedule under which EPA is to sign ‘‘a notice of proposed rulemaking pertaining to the issuance of the Hazardous Substance Regulations’’ and take final action after notice and comment on said notice.

According to the NPRM, after reviewing its records, especially the hundreds of thousands of spills reported to the National Response Center over the past 10 years, EPA concluded that a very small percentage—less than 1% of these reports—identified releases of hazardous substances originating from non-transportation-related facilities.

“Based on the reported frequency and impacts of identified CWA HS 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.”

Therefore, EPA has proposed to add no new rules. However, it will take comments on its proposed approach, and these comments must be received by August 24, 2018.