Main Menu
With the New Year underway and new government leadership on the doorstep, this is a perfect time for employers to reflect on the past and look toward the future with new resolve. A handful of important changes to the law in 2008, as well as impending

In late November, the United States Environmental Protection Agency (EPA) issued a final rule making significant changes to its Spill Prevention, Control and Countermeasure (SPCC) rule and issued a proposed rule to extend deadlines for compliance under the amended rule.

 EPA also issued a separate final rule in late November vacating the current definition of the term "navigable waters" under its July 17, 2002 revisions to the SPCC rule and adopting the previous, more narrow, definition of the term adopted by the EPA in 1973. EPA took this action upon the order of the United States District Court for the District of Columbia in a lawsuit brought by various industry groups challenging the "navigable waters" definition. The 1973 regulatory definition of "navigable waters" means "navigable waters" as defined in Section 502(7) of the Federal Water Pollution Control Act (FWPCA), which defined the term to include: (a) "all navigable waters of the United States" as defined in judicial cases predating the passage of the FWPCA; (b) "interstate waters"; (c) "intrastate lakes, rivers, and streams" that are utilized by interstate travelers; and (d) "intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce."

Further, on December 5, 2008, EPA published a final rule that makes additional significant changes to its SPCC rule to provide clarity, tailor requirements to particular industry sectors, and streamline certain requirements under the rule. Specifically, the final rule exempts certain containers and products from the application of the rule, such as hot-mix asphalt and hot-mix asphalt containers and residential heating oil containers. The final rule also streamlines certain requirements and provides greater flexibility by, among other things, establishing an SPCC plan template that will allow certain "qualified facilities" to self-certify their SPCC plans rather than hire a professional engineer to do so. In addition, the final rule amends the general secondary containment requirement, and it amends the integrity testing requirement for bulk storage containers to allow greater flexibility in the use of different industry standards for testing the integrity of such containers. Finally, the final rule makes changes to specific industry requirements, such as exempting pesticide application equipment from regulations in the agricultural sector that might currently be subject to the SPCC rule when crop or adjuvant oil are added to the pesticide formulations.

To provide regulated facilities with additional time in which to implement the requirements set out in these recent changes in addition to the changes found in the 2002 amendments to the rule, EPA issued a proposed rule on November 26, 2008 to extend the current compliance deadlines for regulated facilities. If finalized, this would be the sixth extension of the compliance dates originally established in the 2002 amendments to the SPCC rule.

Under the existing schedule, a regulated facility that was in operation on or before August 16, 2002 must amend its current SPCC plan to comply with the 2002 amendments and fully implement its plan by July 1, 2009, while a facility that began operating after August 16, 2002 but before July 1, 2009, must either prepare a compliant plan or amend its current plan by no later than July 1, 2009. Finally, a facility that becomes operational after July 1, 2009 must prepare and implement a SPCC plan before it begins operations.

Under EPA's proposed rule, facilities that commence operations on or before August 16, 2002 would be required to amend their SPCC plans in conformance with the 2002 amendments and fully implement those plans by no later than November 20, 2009. Likewise, facilities that begin operations after August 16, 2002, but prior to November 20, 2009, would be required to prepare and implement compliant SPCC plans on or before November 20, 2009, while newer operations must prepare and implement SPCC plans before beginning operations.

If you are a facility that has previously prepared an SPCC plan, or is required to do so, it is important that you note the current compliance deadlines under EPA's SPCC rule and the proposed new deadlines offered by EPA in its November 26, 2008 proposed rule.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Environmental and Natural Resources Team.

Even though the content of the above Greenebaum Doll & McDonald e-bulletin is primarily informative, state and federal law obligates us to inform you that this is an advertisement. You have received this advisory because you are a client or friend of the firm.

About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 200 legal professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®.

Copyright 2008 Greenebaum Doll & McDonald PLLC. All Rights Reserved.



Recent Posts




Back to Page