Sustained Outrage

After 40 years, EPA to write spill prevention rule

Coal Water Pollution

There’s some significant news out this week, with the U.S. Environmental Protection Agency agreeing in a settlement with citizen groups to write a major new chemical plant safety rule. Here’s what the Natural Resources Defense Council said in a press release:

The Environmental Protection Agency will put in place new safeguards to help protect communities from dangerous chemical spills at tens of thousands of industrial facilities nationwide, under the terms of a legal settlement approved by a federal district court in New York. The agreement is meant to strengthen protections as called for by Congress more than four decades ago.

You can read the legal settlement here.

Last July, Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety, and the NRDC sued EPA alleging that the agency had failed to prevent hazardous substance spills from industrial facilities, including above-ground storage tanks. NRDC explained:

The settlement between the groups and EPA, approved by the federal district court for the Southern District of New York, requires EPA to begin a rulemaking process immediately and to finalize spill prevention rules within three and a half years.  The forthcoming protections will cover over 350 hazardous chemicals, and will apply broadly to tens of thousands of industrial facilities across the country.

There are thousands of hazardous substance spills each year from industrial facilities that are not subject to any hazardous substance spill prevention rules, according to United States Coast Guard data from the last ten years.  Chemicals released in industrial spills can contaminate waterways, and exposure to these substances can be dangerous, and in some instances, fatal. 

Pam Nixon, spokeswoman for PCACS, said:

It is unfortunate that it took a lawsuit to get EPA to agree to set spill prevention rules.  Uniform federal safeguards for above-ground storage tanks and secondary containment will better protect not only public drinking water systems, but also the groundwater for households using private wells.

But keep in mind, as explained in a legal filing in the case:

The chemical involved in the Freedom Industries spill is not listed as a hazardous substance under the Clean Water Act … and thus would not be covered under the hazardous-substance regulations plaintiffs seek in this case. But the Freedom industries spill brought to national attention the broader threat posed by the lack of spill-prevention regulations for chemical storage facilities like above-ground storage tanks.

Some readers may recall that the U.S. Chemical Safety Board is examining this EPA rulemaking issue as part of its broader investigation of Freedom Industries. As then-CSB Chairman Rafael Moure-Eraso testified in a congressional hearing in March 2014:

In October of 2013, at the request of the company, Tank Engineering and Management Consultants performed a review of the tank terminals located in Charleston and Nitro. The evaluation was conducted and approved by an API-653 and 570 certified inspector, who also was credentialed as a National Association of Corrosion Engineers (NACE) Certified Corrosion Technologist. The review notes that the substances stored in tank 396 are considered “non hazardous” by the Environmental Protection Agency and are therefore not regulated by the federal Spill Prevention Control and Counter Measure Program, or SPCC rule. The review further notes that the tanks have “been maintained to some structural adequacy but not necessarily in full compliance with API-653 or EPA standards.” API-653 is considered the prevailing voluntary good practice for aboveground storage tank (AST) inspection, repair, alteration and repair, and was developed to establish a uniform national program that assists state and local governments in AST regulations. API 653 covers basically every age related damage mechanism known, including but not limited to corrosion, brittle fracture and improper fabrication. While EPA’s SPCC rule outlines requirements for prevention and preparedness of oil discharges such regulations do not apply to tanks containing “non hazardous substances” like those found at Freedom Industries.

I asked the CSB what they thought of the EPA’s new legal settlement, and a spokeswoman sent me this statement from current CSB Chairwoman Vanessa Allen Sutherland:

The CSB is encouraged that EPA will be moving forward with new regulations governing the storage of hazardous substances at onshore facilities. The CSB is examining the 2014 release at Freedom Industries, which is an all too real reminder of the issues related to the chemical contamination of drinking water.

Here in West Virginia, of course, lawmakers unanimously passed a landmark bill to better regulate above-ground chemical storage tanks, though they went back last year and seriously weakened that law. Still, state Department of Environmental Protection Spokeswoman Kelley Gillenwater told me:

While we can’t speculate on whether the EPA’s Hazardous Substance Regulations, when finalized several years from now, will be similar to what West Virginia already has in place for ASTs, our agency does feel confident that West Virginia’s regulations put the state ahead of the curve compared to much of the rest of the country when it comes to preventing chemical leaks from contaminating drinking water.

And the EPA had this to say (in a statement from press secretary Melissa Harrison that was forwarded to me by another EPA press officer, Julia Valentine):

EPA is moving forward with proposing a chemical spill prevention rule to address hazardous substances under the Clean Water Act and soliciting public comment on such a proposal

Still, it’s not exactly like those rules are going to come out and be implemented anytime soon … here’s the language from the legal settlement:

No later than 18 months after the Court’s entry of this Consent Decree, EPA shall sign (and within 15 days thereafter transmit to the Office of the Federal Register) a notice of proposed rulemaking pertaining to the issuance of the hazardous substance regulations. If no later than 60 days after the Court’s entry this Consent Decree, however, EPA notifies Plaintiffs in writing that it intends to publish a Federal Register notice regarding the collection of information … the deadline by which EPA must sign the notice of proposed rulemaking described in the preceding sentence shall be extended to 28 months after the Court’s entry of this Consent Decree …

No later than 14 months after publication of the proposed Hazardous Substance Regulations … EPA shall sign (and within 15 days thereafter transmit to the Office of the Federal Register) a notice taking final action following notice and comment rulemaking pertaining to the issuance of the Hazardous Substance Regulations.