Industry Coalition Conveys Priorities to EPA, White House on Clean Water Act Provisions

ILTA participated in an industry coalition on a call with Federal officials from EPA and the White House Office of Management and Budget (OMB) on March 3. Coalition members represented on the call included ILTA, the American Chemistry Council, the American Petroleum Institute, The American Fuel and Petrochemical Manufacturers Association, and the National Mining Association. The regulatory action applies to chemical storage facilities covered by Clean Water Act section 311 (j)(5)(a). At the time of the call, EPA had submitted a draft rule to OMB for review but the substance of the draft had not been made public.

The coalition presented the case that any new CWA planning/response plan under CWA 311 (j)(5)(A) should not be duplicative of existing regulatory programs that require facilities to prepare, maintain, and revise similar spill or emergency response plans. Existing programs include, but are not limited to, the Federal Spill Prevention, Control, and Countermeasure (SPCC) program and facility response plan program (FRP), OSHA requirements, the Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements, EPA’s National Response Center (NRC) database, the Risk Management Program (RMP) regulations, RCRA, notably the Requirement for Contingency Plans located in 40 CFR 264 Subpart D, and many other federal, state, and local regulatory programs.

In previous related rulemakings, EPA has acknowledged that a number of existing programs sufficiently included response programs and obviated the need for any need new requirements under CWA 311 (j)(5)(a). These programs include but are not limited to: NPDES MSGP for Industrial Stormwater, RMP, SPCC, Pesticide Worker Protection Standard, RCRA Generators, RCRA TSDF, UST, and EPCRA Emergency Planning and Notification regulations. The coalition pointed out that these programs are still all in operation today and argued that the agency should again find that this issue is adequately addressed through existing programs.

The coalition also argued that any new spill control and emergency response plan requirements (if necessary) should be implemented in an equitable and cost-effective manner that effectively balances adverse economic impacts and costs with a commensurate risk reduction. Further, EPA must accurately and realistically characterize the risks of the occurrence of spills and associated risks to surrounding communities. Any assessments of environmental risks should appropriately focus on the likelihood (or lack thereof) of spills reaching a nearby navigable water before cleanup occurs. As such, in many cases, existing containment measures and facility plans are likely sufficiently protective of a facility’s surrounding environment.

Given the highly site-specific nature of the implementation associated with these requirements, EPA should first look to the regulated entities (i.e., facilities) to craft the regulatory plans that will impact their operations. EPA should also refrain from implementing any duplicative requirements that would create new regulatory burdens and yield no reduction in actual risk. The framework of any new regulation must necessarily address actual risks while accurately considering the costs of any new requirements. Specifically, where federal, state, or other requirements already achieve the ends of any potential spill control regulation, prior to the creation of any additional controls, it is essential that regulators carefully evaluate the cost and feasibility of additional controls and the degree of protection actually afforded by them.

The coalition partners recommended that the agency should consider chemical manufacturing requests on tank requirements when creating the proposal. If tanks are subject to the regulation, there should be an exemption of process tanks from the threshold determination. If the scope of any proposed requirements addresses containers of hazardous substances, EPA should consider applicability thresholds, similar to SPCC regulations, which include a de minimus total storage volume for rule applicability, and a de minimus container size for applicability of secondary containment requirements.

Finally, the coalition partners asked that If EPA proceeds with rulemaking that the agency provide ample time to engage stakeholders and finalize it given the important pending actions currently under consideration.

For further information on this issue, please contact ILTA Vice President for Government Relations Michael Stroud at mstroud@ilta.org.