Environmental Groups File Notice to Sue Over SPCC

February 11, 2019

The Natural Resources Defense Council, Clean Water Action, Environmental Justice Health Alliance, and the Just Transition Alliance have filed a statutorily-required 60-day notice of intent to sue EPA over its yet-to-be-finalized decision from last June to use existing regulatory authorities, rather than expand its Spill Prevention, Control and Countermeasure (SPCC) rules, to address spills and discharges of “hazardous substances.” EPA under the Obama administration agreed to a court-approved 2016 consent order to promulgate SPCC regulations for hazardous substances by this month.

The environmental groups contend that EPA had a non-discretionary duty under the Clean Water Act (CWA) to issue worst-case, hazardous substance spill regulations under the SPCC program by August 1992, and that these regulations are now more than 25 years overdue. They cite to CWA Section 311(j)(5)(A)(i), which was added by Congress in 1990, and which provides that “the President shall issue regulations which require an owner or operator [of a facility] … 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 oil or a hazardous substance.”

“ILMA submitted comments last year to EPA on the adequacy of its proposal to not expand the SPCC program,” said ILMA CEO Holly Alfano. “It looks like the environmental groups will assert that EPA has a non-discretionary duty to develop a ‘hazardous substances SPCC’ and attack EPA’s ‘existing authorities’ decision as failing to satisfy the statutory requirement to address ‘worst case discharges.’”

The Trump administration’s EPA is trying to both deregulate the Agency and end the Obama administration’s “sue and settle” practice which resulted in the 2016 consent order. EPA’s decision not to propose new SPCC rulemaking for hazardous substances should come as no surprise, although the effect of the environmental groups’ notice of intent to sue remain to be seen.