The Nickel Report

In a lawsuit recently filed in the Southern District of New York, a group of environmental plaintiffs allege that, for nearly 30 years, the federal Environmental Protection Agency (EPA) has failed to develop worst-case hazardous substance discharge, or spill, regulations under Section 311(j)(5) of the Clean Water Act (CWA). This suit comes on the heels of EPA’s June 2018 proposal not to develop a general hazardous substance spill program under CWA § 311(j)(1) (a provision related to the Spill Prevention, Control and Countermeasure (SPCC) Rule well known to industrial facilities storing oil) because of the many other programs EPA believes already regulate the prevention and containment of hazardous substance spills. That proposal is expected to be finalized in August 2019 under a 2016 consent decree in which EPA agreed to evaluate the need for general rules governing the prevention and containment of hazardous substance spills. The new lawsuit narrowly focuses on worst-case hazardous substance spills and the need for corresponding facility response plans.

Under the CWA, a worst-case discharge from an onshore or offshore facility is the largest foreseeable discharge in adverse weather conditions. Citing the devastation caused by Hurricane Harvey and subsequent spills of hazardous substances, which we have previously covered, the Environmental Justice Health Alliance for Chemical Policy Reform and other environmental plaintiffs argue that those spills could have been prevented had EPA promulgated worst-case hazardous substance spill regulations for facilities that could reasonably be expected to cause substantial harm to the environment by discharging to navigable waters or adjoining shorelines. The plaintiffs further argue that EPA must require these facilities to develop facility response plans, similar to those already required for similar facilities storing oil.

The latest lawsuit is only in its early stages but is one to watch. It is brought by the same group of environmental plaintiffs who entered into the 2016 consent decree with EPA requiring the agency to propose a rulemaking pertaining to general hazardous substance spill regulations, only to have EPA in 2018 propose no rules. In their comments on EPA’s proposal, the same environmental groups and others unsurprisingly leveled a host of criticisms of EPA’s plan. The environmental plaintiffs will presumably be keen to prosecute their new claims that EPA must develop specific regulations to cover what they consider to be the worst of the worst potential hazardous substance spills.

The environmental plaintiffs filed their new complaint on March 21, 2019, and the case has been assigned to Judge Victor Marrero, a Clinton appointee. The court has not yet established a date for the EPA to file an answer or other response in the case.