Relieved of Duty: Congress Quietly Amends CWA to Free Some Farms From SPCC Obligations

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Owners of some farms subject to EPA’s Spill Prevention, Control, and Countermeasures (SPCC) Regulation will be relieved to hear that some relief from the rigid requirements is here. EPA’s SPCC Regulation applies to nearly everyone—including farms—who manages “oil” in regulated quantities in locations where, due to the location of the oil storage facilities, any spill or release of that oil in harmful quantities could reasonably be expected to be discharged into the navigable waters of the United States in violation of the CWA. The SPCC Regulation requires the preparation of an SPCC plan that complies with 40 C.F.R. § 112.7, and can trigger training and plan certification by qualified engineers. For some farms, this is a burdensome and expensive compliance requirement.

Fortunately for some owners, last June, Congress passed and the President signed Public Law 113-121, the Water Resources Reform and Development Act (WRRDA).  Section 1049 of this legislation amends the Clean Water Act (CWA) to relieve some farms from the burdensome requirements of EPA’s SPCC Regulation.  The change to the CWA is codified as a Note to 33 U.S.C. § 1361 and directs EPA to make changes to the SPCC Regulation.  The WRRDA specifies the storage capacity that triggers exemptions from the need to utilize the services of a professional engineer and, in the alternative, have the owner or operator of the farm “self-certify.”  Indeed, the WRRDA provides that EPA “shall not require compliance with the rule by any farm with an aggregate aboveground storage capacity of less than 2,500 gallons.”  Moreover, the exemption levels specified in the law could be adjusted downward following the conclusion of a special study of these issues by EPA and the Department of Agriculture.  EPA’s Fall 2015 Regulatory Calendar announces that EPA will propose rules to implement the WRRDA and to revise the SPCC Regulations.  The special study has been completed and EPA plans to publish a notice of proposed rulemaking in June 2016.

Those that may qualify for the relief contemplated by the WRRDA should keep an eye out for EPA’s notice of proposed rulemaking this coming spring.