Hazardous Substance Response Plans Are Coming

Over thirty years after the requirement was first included in the Clean Water Act and after a suit was filed to force EPA to act, EPA has published a proposed rule relating to planning for worst-case discharges of hazardous substances. The comment period is open to May 27, 2022.

The Clean Water Act was amended by the Oil Pollution Act of 1990. As part of that amendment, a provision was added requiring the issuance of regulations mandating that certain facilities prepare and submit 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.” CWA Section 311(j)(5); 33 USCA 1321(j)(5). Of course, both the EPA and the U.S. Coast Guard have promulgated various regulatory requirements relating to discharges of oil, such as those in 40 CFR Part 112, as well as some requirements relating to hazardous substances. However, according to EPA, no single program covered all the requirements of CWA Section 311(j)(5).

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Clean Water Restoration Act, S. 787 and SPCC Rule Finalized, Again

Clean Water Restoration Act, S.787

This bill (S. 787) seeks to substantially expand the jurisdictional reach of the Clean Water Act, and that of the regulatory agencies administering the Act, by amending two key definitions. S. 787 will remove the definition of ‘navigable waters’ that has been included in the Act since its enactment and will replace it with a new, broadly defined statutory term, ‘waters of the United States.’ That term has been defined in EPA and Corps regulations for many years. However, the bill will provide a statutory definition of the ‘waters of the United States’ that expands the prior regulatory definition to include, among other things, “all interstate and intrastate waters and their tributaries” and “wetlands” “to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” Note that the definition not only includes the actual waters, but ‘activities affecting these waters.’ Continue reading “Clean Water Restoration Act, S. 787 and SPCC Rule Finalized, Again” →

Environmental Justice Efforts Renewed

Environmental justice was touted by then-candidate Obama as central to his environmental platform. See Environmental Update, Dec. 12, 2008 (attached). Now, President Obama has required the EPA, acting through Administrator Lisa Jackson, to make environmental justice a ‘focus’ of the agency’s activities. Ms. Jackson stated that the agency should focus on “the poor and underserved” so that environmental issues “connect with people’s brain space on the things they deal with every day.” BNA, Vol. 40, No. 30, p. 1785, July 24, 2009. Continue reading “Environmental Justice Efforts Renewed” →