Proposed Rulemaking on Clean Water Act Hazardous Substances Spill Prevention
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On June 15, 2018, EPA's Administrator signed a proposed action to establish no additional regulatory requirements under the Clean Water Act (CWA) section 311(j)(1)(C) authority for CWA hazardous substances (HS) discharge prevention. Based on an analysis of the frequency and impacts of reported CWA HS discharges and the existing framework of regulatory requirements, EPA is not proposing additional regulatory requirements at this time.
This proposed action is intended to comply with the Consent Decree and to provide an opportunity for public notice and comment on EPA’s proposed approach to satisfy the CWA requirements. Comments must be received on or before August 24, 2018.
On June 22, 2018, EPA issued the voluntary survey directed at State and Tribal Emergency Response Coordinators (respondents with custodial responsibility for data representing the potentially affected "facility universe" that produce, store, or use CWA HS), as well as state, tribal, and territorial government agencies with custodial responsibility for data on CWA HS impacts to drinking water utilitites and fish kills potentially caused by discharge(s) of CWA HS.
EPA published a Notice of Data Availablity (NODA) making the survey data received available for public review and comment. The Agency considered the supplemental data received in response to the survey, and the related public comments, to further inform the final action.
CWA Section 311(j)(1)(C) directs the President to issue regulations establishing procedures, methods, and equipment; and other requirements for equipment to prevent discharges of oil and HS from vessels and from onshore facilities and offshore facilities, and to contain such discharges. The President has delegated the authority to regulate non-transportation-related onshore facilities and offshore facilities landward of the coastline, under Section 311(j)(1)(C) of the CWA to EPA.
On July 21, 2015, EPA was sued for failing to comply with the alleged duty to issue regulations to prevent and contain CWA hazardous substance discharges. On February 16, 2016, the U. S. District Court for the Southern District of New York entered a Consent Decree that required EPA to sign a notice of proposed rulemaking pertaining to the issuance of hazardous substance regulations. The Consent Decree also requires EPA to take final action after notice and comment on said notice.