Comments on Proposed Action: Clean Water Act Hazardous Substances Spill Prevention

Monday, August 27, 2018 - 12:30pm

Submitted via

August 24, 2018

U.S. Environmental Protection Agency
EPA Docket Center
Attention Docket ID No. EPA-HQ-OLEM-2018-0024
Mailcode: 28221T
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460

Re: Comments on Proposed Action: Clean Water Act Hazardous
Substances Spill Prevention; Docket ID No. EPA-HQ-OLEM-2018-0024

Dear Sir or Madam:

This letter provides comments of the undersigned organizations on EPA’s
above-referenced proposal to establish no new requirements applicable to
hazardous substances under Clean Water Ac t (“CWA”) section 311, published on
June 25, 2018, 83 Fed. Reg. 29,499 (the “P roposed Action”). We agree with EPA’s
conclusion in the Proposed Action that the existing framework of regulatory
requirements serves to prevent and cont ain discharges of hazardous substances,
and no additional requirem ents under CWA § 311(j)(1)(C) are necessary or
appropriate. In these comm ents, we expand upon the legal justification for the
Proposed Action and ask that EPA include a similar expanded discussion in the
preamble to its final action. Many of t he undersigned organizations also intend to file
individual comments on the Proposed Action.
Many of the undersigned organizations have a long history of participation in
EPA’s outreach efforts during its develop ment of the Proposed Action. These
organizations own and operate fac ilities that are subject to various federal, state, and
local regulatory permit and discharge requirem ents. Thus, we are very familiar with
the full range of existing programs review ed by EPA in the Proposed Action and the
essential program elements they contain. For example, EPA correctly concluded
that the Spill Prevention, Control, and Countermeasur e (“SPCC”) program that
applies to oil, including mixtures of haz ardous substances and oil, contains a range
of requirements that include a general revi ew of facility hazards, personnel training,
incident investigation, and emergency res ponse planning. These aspects of EPA’s
SPCC regulations serve to underscore the existence of the essential program
elements in current requirem ents. Other programs, like industry effluent limitations
guidelines (“ELGs”) and Best Management Practices (“BMPs”), also contain
requirements for routine or continuous monitoring and regular reviews of Safety Data
Sheets. Our facilities’ regular and c ontinuous compliance with these programs
evidences our substantial familiarity with the essential program elements discussed
in the Proposed Action, as well as our signifi cant interest in any potential new CWA

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regulatory requirements. Some of our organizations’ individual comments expand
upon the practical effect of t hese other regulatory programs.
As explained further below, EPA has discretion to interpret CWA
§ 311(j)(1)(C) as having already been satisfied by regulations issued by EPA and
other federal agencies and the statutes t hey implement. EPA also has inherent
discretion to decline to issue regulations that would carry significant regulatory
burdens but would provide only de minimis regulatory benefit. EPA furthermore is
entitled, and indeed is instru cted by Executive Order, to avoid imposing additional
regulatory requirements when the expect ed societal costs would exceed the
predicted benefits of any additional regulation. Promulgat ing a new rule under those
circumstances would be arbi trary and capricious, and the undersigned organizations
support EPA’s decision not to impose such regulations on the regulated community.
1. EPA Has Discretion To Interpret Exis ting Regulations As Having Fulfilled
Any Duty To Promulgate Requireme nts for Prevention and Containment
of Hazardous Substance Discharges.
The undersigned organizations appreciate EPA’s effort to carefully analyze
the potential overlap between existing requirements under statutes and regulations
implemented by EPA and by other federal agencies, and the requirements that likely
would be included in new regulations for pr evention and containment of spills of
CWA-listed hazardous substances that EPA could impose pursuant to CWA
§ 311(j)(1)(C). Considering whether a new regulation is needed or would merely
duplicate the effect of ex isting mandates was a reasonable, and indeed necessary,
component of the rulemaking proc ess. It also is consistent with the directives of
Executive Orders 12866, 13563, 13610, and 13777 for federal agencies to
streamline regulations, consider alternat ives to imposing new regulations, and
identify for elimination “unnecessary” regulations.
It is of no import that the regulatory requirement s EPA identifies in the
Proposed Action (and others, described below) were not specifically designated as
regulations issued under the authority of section 311(j)(1)(C), or were not issued by
EPA. In fact, it would be arbitrary and capr icious for EPA to ignore the statutory and
regulatory programs that have been adopted in the 45 years since Congress enacted
CWA § 311(j)(1)(C) that already achiev e the same ends as any potential new
regulation, regardless of whether they were issued with reference to section
Virtually all of the ot her regulatory requirements EPA identified in the
Proposed Action, as well as the additional statutory and regulatory requirements
identified in these comments, did not exist in 1972, when CWA section 311(j)(1)(C)
was enacted. In light of the existence and administration of these requirements

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today, there is no reason to assume that Congress intended to require EPA to
promulgate additional, standalone regulatio ns citing the authority granted under
section 311(j)(1)(C), when subsequent statutory and regulatory programs have
accomplished Congress’ original intent.
Additionally, section 311(j)(1)(C) is di rected to the President, as the head of
the executive branch, not to EPA specifically. It therefore is approp riate to consider
requirements promulgated by or enforced by all executive branch agencies, not just
EPA, when assessing whether the purpose and letter of section CWA § 311(j)(1)(C)
have been met.
1 The statute does not dictate any particular form of regulations the
President must issue, and it contemplat es regulations being issued and evolving
over time, rather than cr eated by a particular deadline.
Thus, EPA has discretion to interpre t section 311(j)(1)(C) as having been
fulfilled by regulatory programs EPA and ot her federal agencies have adopted over
the past 45 years, an interpretation to which courts will likely give deference.
Although EPA never clearly states in the Proposed Action that it has concluded that
existing requirements under federal law sati sfy any obligation the President had to
issue regulations und er CWA § 311(j)(1)(C)
3, that is the import of EPA’s Proposed
Action. EPA should clearly state in its final action, however, that it concludes that
any obligation of the Presi dent to issue regulations und er CWA § 311(j)(1)(C) has

1 Note that the Proposed Action is inconsistent in its description of what role consideration of
non-EPA regulatory programs played in EPA’s proposed conclusion. Compare, e.g., 83 Fed.
Reg. at 29,502 (“Additionally, EPA identified relevant requirements \
in other Federal
regulatory programs and determined that they further serve to prevent CW\
A HS discharges,
providing additional support for this proposed action.”) with 83 Fed. Reg. at 29,509
(“Although the analysis of existing EPA regulations is the basis for this proposal, EPA
reviewed other Federal regulations with prevention requirements that may be applicable to
CWA HS.”) and 29,516 (requesting comments on “whether EPA should consider expanding
the basis of the proposal to these Federal r egulations” that “supplement the EPA regulatory
program analysis”). The final action should state clearly that the effects of statutory and
regulatory programs administered by federal agencies other than EPA in preventing and
containing discharges of hazardous substances is part of the basis for EPA’s conclusion that
CWA § 311(j)(1)(C) has been satisfied. As addressed below, the Agency should also state
more clearly that these programs meet the legislative intent of section 311(j)(1)(C).

2 See CWA § 311(j)(1)(C) (regulations to be issued “as soon as practicable” after enactment
of the Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, “and from time
to time thereafter”).

3 See , e.g., 83 Fed. Reg. 29,502 (“EPA has determined that the existing framework of
regulatory requirements serves to prevent CWA HS discharges”); id. at 29,516 (“[M]ultiple
statutory and regulatory requirements have been established…that generally serve to,
directly and indirectly, prevent CWA HS di scharges….Based on EPA’s analysis…EPA is not
proposing additional regulatory requirements at this time.”).

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been fulfilled by other federal statutory and regulat ory programs implemented
subsequent to the 1972 enactment of section 311(j)(1)(C).
2. EPA Has Inherent Authority To Conc lude that Promulgation of Additional
Requirements Under CWA § 311( j)(1)(C) Would Provide De Minimis
Regulatory Benefit.

When EPA issues its final action, the A gency should spell out in greater detail
the way it reached the conclusion that no new regulation under CWA § 311(j)(1)(C) is
warranted, with specific reference to agencies’ authority to eschew regulatory action
that would not produce any significant regulat ory benefit. Even if the text of CWA §
311(j)(1)(C) unambiguously required EPA to issue st andalone spill prevention and
control regulations for hazardous subst ances based solely on that statutory
provision, EPA still would hav e authority to depart from a literal application of the
statute, based on its inherent authority to avoid promulgating a rule that would
provide insignificant, or “de minimis ,” regulatory benefit. While the Proposed Action
lays out that basis for choosing not to est ablish a new federal regulatory program,
EPA does not clearly indicate that it is relying on its de minimis authority.
Although a statutory dire ctive appears unequivocal on it s face, an agency still
may refrain from applying the statutory m andate “as an exercise of agency power,
inherent in most statutory schemes, to over look circumstances that in context may
fairly be considered de minimis."
4 In fact, the Supreme C ourt recently suggested an
agency may be obligated to assess whether regulation would produce more than de
minimis benefit.

4 Alabama Power Co. v. Costle , 636 F.2d 323, 360 (D.C. Cir. 1979; Ass’n of Admin. Law
Judges v. FLRA , 397 F.3d 957, 962 (D.C. Cir. 2005) (unless statute is “‘extraordinarily rigid

Congress is always presumed to intend that ‘pointless expenditures of effort’ be avoided.”)
(quoting Alabama Power , 636 F.2d at 360); Wisconsin Dept. of Revenue v. William Wrigley,
Jr., Co. , 505 U. S. 214, 231 (1992) (“[ D]e minimis non curat lex . . . is part of the established
background of legal principles against which all enactments are adopted”). See also, e.g.,
Environmental Defense Fund, Inc. v. EPA , 82 F.3d 451, 465-66 (1996), where the D.C.
Circuit upheld an EPA regulation that excludes certain categories of federal activities, as well
as those activities that do not affect “major” emission sources, from the State Implementation
Plan conformity determinations that Clean Air Act (CAA) section 176(c)(1) literally requires
for “any activity” of the federal government. The Court relied on Alabama Power’s statement
that “categorical exemptions from the requirements of a statute may be permissible” to avoid
imposing requirements on activities that “in context may fairly be considered de minimis.” Id.
at 466.

5 See Utility Air Regulatory Group v. EPA , 134 S. Ct. 2427, 2449 (2014) (EPA may impose
requirements on source’s emissions “only
if the source emits more than a de minimis
amount”) (emphasis added).

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The Proposed Action addresses a situat
ion in which the adoption of other
statutes and regulations over a long period have met C ongress’ regulatory intent.
Such a situation renders unnecessary regulati ons that a literal reading of the statute
would require. In similar previous situations, EPA has exercised its de minimis
authority, with the courts’ approval. For example, in State of Ohio v. EPA, the D.C.
Circuit approved EPA’s promulgation of a de minimis exemption from a statute
requiring periodic review of certain Superfund sites.
6 EPA’s regulation required
periodic review only of sites where haz ardous substances remained at levels
precluding unrestricted use of and exposure to the site (thus exempting sites at
which hazardous substances remained, but at lower levels, pursuant to EPA
remediation guidelines), even though the statute literally requires periodic review for
any site at which “any hazardous substances” remain.
Importantly, under the de minimis doctrine, an agency can decline to take a
regulatory action when the totality of circumstances indicates that issuing the
regulation would provide no significant benefit – not just when there would be no
benefit at all. Especially when a new regul ation would, as in the present action,
result in significant compliance cost s, the agency should assess whether the
regulatory benefits (here, the potential avoidance of some spills) would be de
minimis , even if some benefit c ould presumably result.
EPA correctly considered whether a regulation imposing additional
requirements intended to improve spill pr evention and containment would, “in
9 produce “incremental advantages” over existing statutory and regulatory
authorities.10 The law does not require an agency to promulgate additional layers of
regulatory requirements when the improvement over the status quo would be

6 997 F.2d 1520, 1534-36 (D.C. Cir. 1993).
7 See also Train v. Colorado Public Interest Research Group, Inc. , 426 U.S. 1 (1976), in
which the Supreme Court affirmed EPA’s interpretation of the CWA’s broad definition of
“pollutant,” which specifically includes “radioactive materials,” as nonetheless allowing EPA
to exclude from CWA regulations “source, byproduct, and special nuclear materials,”
because they are subject to regulation under the Atomic Energy Act.

8 Cf. Michigan v. EPA, 213 F.3d 663, 677-78 (D.C. Cir. 2000) (questioning whether
emissions could be determined “significant” without considering costs of eliminating them).

9 See Alabama Power, 636 F.2d at 360.
10 See , e.g., 83 Fed. Reg. at 29,517.
11 It is important to note that application of the de minimis doctrine does not require a
complete congruence between the regulatory programs identified in the Proposed Action
(and the additional statutory and regulatory authorities described in the next section of these

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EPA also correctly considered whether
discharges would actually be reduced
in practice just because additional regulat ions were promulgated, as it would be
arbitrary to assume that a new layer of regulation would deter an outcome when
numerous similar existing regulations wo uld not. Importantly, of the 2491 CWA
hazardous substances dischar ges that EPA identified as originating from onshore,
non-transportation-related facilities during 2007-2016, more than half resulted from
unknown causes or illegal dumping.
12 We concur with EPA’s observation that
additional regulatory requirements are unlikel y to prevent such discharges: “There is
no reason to believe that a redundant prohibition on such dumping would alleviate
the problem of those who already disregard existing regulations.”
Thus, EPA should clearly state, when it ta kes final action concluding that no
new regulations are necessary under CW A § 311(j)(1)(C), that EPA is acting
pursuant to its inherent author ity to depart from what might be a literal application of
the statute but would provide only de minimis additional regulatory benefit.
3. Additional Statutory and Regulator y Programs Help Prevent and Contain
Hazardous Substance Spills.
The undersigned organizations urge EPA, in its final action, to expand its
discussion to include the numerous other fe deral statutory and regulatory programs
that have the effect, either directly or i ndirectly, of helping to prevent and contain
discharges of hazardous substances.
In the Proposed Action, EPA describes a number of existing regulatory
programs that EPA administers, as well as a number of regulatory programs

comments) and the substances and scenarios EPA might address in new regulations
adopted under CWA § 311(j)(1)(C). For example, there could be de minimis regulatory
benefit to a new set of regulations where an existing program contained similar provisions
covering most, but not every one, of the CWA hazardous substances.

12 See 83 Fed. Reg. at 29,517, Table 7.
13 Id. at 29,516.
14 EPA’s judgment that promulgating additional requirements under CWA §\
would result in de minimis regulatory benefits is entitled to deference. The D.C. Circuit has
indicated that the same standard used in reviewing an agency’s interpretation of \
ambiguous statutory provision – namely, deferring to a “permissible” agency interpretation –
should be used in reviewing an agency’s decision to create a de minimis exception.
Environmental Defense Fund, 82 F.3d at 467, citing State of Ohio v. EPA , 997 F.2d 1520,
1535 (D.C. Cir. 1993), Western Nebraska Resources Council , 943 F.2d 867, 870 (8th Cir.

1991), and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837,
842-43 (1984).

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administered by other federal agencies, that contain one or more of the nine
“program elements” that EPA says are “c ommonly found in discharge prevention and
accident prevention re gulatory programs.”
15 But this analysis and the resulting
federal regulatory programs EPA identified are much too narrow. By focusing only
on an assessment of other regul atory requirements specifically directed at matters
such as spill containment, employee training, and hazard identification and
communication, EPA failed to consider how other regulatory programs with broader
purposes (such as NPDES permits) as we ll as statutory and regulatory programs
establishing liability for hazardous substance discharges, effectively impose
additional “program elements” on facilitie s, either directly or indirectly.
These broad programs and liability provis ions create strong incentives for
facilities to implement appropriate m easures to avoid uncontained hazardous
substance spills. They provide subst antial additional support for EPA’s proposed
conclusion that existing programs have al ready satisfied CWA § 311(j)(1)(C) and that
promulgating additional rules would provide only de minimis regulatory benefit. We
provide a few examples of such programs below.
A. National Pollutant Discharge Elim ination System (“NPDES”) Permits
Tens of thousands of industrial, comme rcial, and governmental facilities are
required to have an NPDES permit becaus e they discharge (or may discharge)
pollutants through a point source to wate rs of the United States. Many NPDES-
permitted facilities are industrial, commerc ial, and governmental establishments that
handle large amounts of chemicals, and therefore would be covered by any new spill
control and containment regulations EPA might issue under CWA § 311(j)(1)(C).
NPDES permits contain effluent limitat ions and other conditions designed to
ensure that any discharges from the point source do not cause or contribute to a
violation of an applicable wa ter quality standard, including narrative standards. An
uncontained spill from a facilit y that reaches “waters of the U.S.” may violate a
specific numerical effluent limitation in the NPDES permit, caus e an exceedance of a
whole effluent toxicity limit, cause a violat ion of a narrative effluent limitation, or
constitute an unauthorized discharge if it does not flow through a permitted outfall.
These NPDES permit violations carry poten tial civil penalties, which can be imposed
in either a state or federal enforcement action or a ci tizen lawsuit, that can easily run
into hundreds of thousands or even millions of dollars.

15 83 Fed. Reg. at 29,503.
16 All of the requirements discussed below in this section came into effect after CWA
§ 311(j)(1)(C) was enacted in 1972, so Congress was not aware of the effects these
requirements would have in effectively mandating or encouraging prevention and
containment of hazardous substance discharges.

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In addition to these direct penalties for a hazardous substance spill th\
reaches a permitted outfall or is dischar ged to a “water of the U.S.” from an
unpermitted point source,” a spill at an NPD ES-permitted facility also can result in
the facility’s wastewater tr eatment plant being unable to meet effluent limitations on
other pollutants or can interfere with the management of sludge the wastewater
treatment plant generates. While the Pulp and Paper Effluent Guidelines that EPA
identified in the Proposed Ac tion contain specific BMP requirements designed to
avoid discharges from mill processes into the mill sewer system, that concern and
response applies to other types of facilities as well. Many of the EPA ELGs for other
point source categories effectively require or create a strong incentive for covered
facilities to implement similar measures to prevent or contain spills that otherwise
would go into the facility’s sewer and im pact its wastewater treatment plant.
B. Pretreatment Program
Similar to NPDES-permitted facilitie s, a large number of industrial,
commercial, and municipal facilities that mi ght store or use significant quantities of
hazardous substances are connected to sewers that transmit wastewater from their
facility to a publicly owned tr eatment works (“POTW”), and thus are subject to EPA
pretreatment standards under CWA § 307, including categorical pretreatment
standards for some industry categories and t he General Pretreatment Regulations at
40 C.F.R. pt. 403 applicable to all indirect di schargers. If a facility spills a hazardous
substance that reaches the municipal sewer system and violates a categorical
pretreatment standard or one or more of the prohibitions in 40 C.F.R. § 403.5, the
facility is subject to civil penalties, wh ich can exceed hundreds of thousands of
dollars. Those prohibitions include introducing any pollutant into the sewer system
that: creates a fire or explosion haza rd; will cause corrosive structural damage,
including any discharge with a pH lower than 5.0; will cause interference with the
POTW; or will pass through the POTW and cause an exceedance of the POTW’s
NPDES permit. Also, POTWs can and oft en do adopt local pretreatment programs
and local limits pursuant to Part 403, which then becom e federally enforceable.
Facilities may have a contractual obligation to the POTW, as well. The combination
of these factors creates a substantial regulatory infrastructure which e\
industrial users of POTWs to avoid hazardous substance spills and to contain them if
they occur.
It is important to note t hat the federal pretreatm ent program results in
measures to prevent and contain hazardous substance spills that often are
implemented in part through local regulat ion and enforcement. For example,
pursuant to 40 C.F.R. pt. 403 and in line with longstanding EPA guidance
17, POTWs
often have great authority (as codified in local ordinances) to compel users to

17 EPA Office of Water, Control of Slug Loadings to POTWs: Guidance Manual , Feb. 1991.

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prepare slug discharge control plans, install secondary containment or make other
modifications to facilities, conduct training, and implement practices to prevent slug
discharges to the POTW of hazardous subs tances and other harmful materials.
Pretreatment ordinances typically contain pr ovisions allowing the control authority to
inspect the user’s facilities to detect sit uations present that could result in slug
discharges to the POTW. Follow-up actions under their legal authority, such as
mandated approval of facility-specific slug discharge control plans and required
construction of secondary containment and protected product and waste handling
areas, have effectively prevented an untold number of POTW system upsets and
pass-through situations nationw ide. Importantly, these actions have at the same
time protected surface waters by pr eventing discharges of stored and handled
materials from industrial user’s facilit ies, thereby performing the function of
regulations under CWA § 311(j)(1)(C) .
C. Spill Cleanup Liability
Liability for the cleanup of releases under the Comprehensive Environmental
Response, Compensation and Liability Act (“CERCLA”) and similar federal and state
laws is perhaps the greatest incentive for facilities proactively to adopt measures and
practices to prevent and contain discharges of hazardous substances. By definition,
substances listed under CWA § 311 are al so hazardous substances under CERCLA
§ 101(14). CWA hazardous substances may also be subject to cleanup
requirements for releases of hazardous waste, under the Resource Conservation
and Recovery Act (“RCRA”) Corrective Action program, and for releases of
hazardous and non-hazardous soli d waste, under the imminent hazard provisions of
RCRA § 7003.
Facilities likely to fall within the sc ope of additional regulations EPA might
contemplate under CWA § 311(j )(1)(C) are already aware of potential liability under
CERCLA and/or RCRA for claims related to hazardous substance releases. Such
releases can result in imposition of millions of dollars of cleanup costs, liability for
natural resources damages, diminished pr operty values, and more. There are
examples across various industries of b illion-dollar liabilities for contaminated
sediment removal or encapsulation, groundwater pumping and tr eating, soil vapor
extraction, and shoreline cleanup.
CERCLA and RCRA cleanup liabilit y undeniably has created a strong
incentive for companies to monitor and control potential releases of hazardous
substances. In light of the size of pot ential cleanup costs, not to mention ancillary
costs such as business interruption and damage to reputation, EPA can reasonably
conclude that in most if not all cases, potential CERCLA or RCRA liability – which did
not exist when CWA § 311 was enacted – is at least as effective in encouraging

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prevention and containment of hazardous substances discharges as any additional
SPCC-type regulations directed at hazardous substances would or could be.
D. Release Reporting
Many industrial facilities are subject to annual Toxic Release Inventory (“TRI”)
reporting under section 313 of the Emer gency Planning and Community Right To
Know Act (“EPCRA”) when they release more than a specified amount of a listed
chemical during the year, including releases to water or land. The TRI toxic chemical
list currently contains 595 individually li sted chemicals and 33 chemical categories.
There is a great deal of overlap between the TRI list and the CWA hazardous
substances list. Thus, many if not most of the hazardous substance discharges that
a potential new regulatory pr ogram under CWA § 311(j)(1)(C) would be designed to
try to prevent would also, if unc ontained, trigger TRI reporting.
As EPA and numerous others have observ ed, the requirement to file TRI
reports, which are frequently scrutinized and published by interest groups, local
governments, and other stakeholders, has b een a powerful incentive over the past
30 years for companies to reduce their use and storage of hazardous chemicals and
improve their practices to prevent releases. EPA should recognize that TRI and
similar federal and state reporting requireme nts can be as effective in motivating
facilities to prevent and contain hazardous substance discharges as can traditional
command-and-control regulations such as the alternatives considered in the
Proposed Action, if not more so.
In addition, inventory reporting already requires many facilities to identify and
track their storage and disposition of hazardous substances. For example,
companies in the construction industry already are filing Tier II Emergency and
Hazardous Chemical Inventory reports annually. CERCLA hazardous substances
listed under 40 C.F.R. Table 302.4 and the extremely hazardous substances listed
under 40 C.F.R. pt. 355 Appendix A and B are subject to reporting under EPCRA
section 304. Given the overlap between the list of CWA hazardous substances and
the CERCLA/EPCRA lists, new regulat ions that EPA might issue under CWA
§ 311(j)(1)(C) not only would be redundant with incentives facilities such as
construction sites already have to minimize storage and releases of haza\
substances, but they also would present substantial potential for confusion about
overlapping requirements.
4. It Would Be Arbitrary and Capric ious for EPA To Promulgate Additional
Spill Control Regulations Where the Cost Would Far Exceed the
Anticipated Benefits.
In the Proposed Action, EPA explains br iefly its conclusion that “the benefits

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would not justify the costs in any alternative other than the proposed alternative” of
not promulgating additional regulations directed at preventing and containing
discharges of CWA hazardous substances, in light of the regulatory programs
already in place.
18 The undersigned organizations concur, and we ask EPA to state
that conclusion more forcefully and explain more fully EPA’s authority to consider the
projected costs and benefits before deciding to adopt any new regulations under
CWA § 311(j)(1)(C).
Nothing in CWA § 311 indicates or ev en suggests that EPA is prohibited by
law from weighing the costs and the benefit s of proposed rules for prevention and
containment of hazardous substances sp ills, and assuring that the benefits of
regulation would justify the co sts – a policy objective that EPA rightly considered in
arriving at the Proposed Action. In the past, agencies have sometimes been quick to
interpret relevant statutory language author izing regulations to preclude weighing
costs versus benefits when considering whether and how to regulate an activity. But
recent case law, particularly from the Supreme Court, has made clear that EPA has
broad discretion to interpret its statutes to allow cost-benefit balancing, unless the
statute expressly prohibits it.
Moreover, the Supreme Court has further shown that, if EPA fails to consider
cost in determining whether to regulate – and in particular, whether to add new
regulations on top of existing requirements – it is vulnerable to a challenge that its
action was arbitrary and capricious.
20 In Michigan v. EPA , the Court found that even
though there was no explicit statutory mandate to consider costs and benefits,
issuing a rule without doing so was unreasonable.

18 83 Fed. Reg. at 29,519. The Proposed Action is somewhat inconsistent in how it states
this conclusion: For example, EPA states that it “believes there would be only minimal
incremental value in requiring these provisions in a new regulation,” but also states that “the
benefits of any of the targeted provisions described above may not
justify the associated
costs.” Id. at 29,517 (emphasis added, footnote omitted). EPA should clearly and
unequivocally state, in its final action, the conclusion that any additional regulation under
CWA § 311(j)(1)(C) would have significant costs that would far outweigh anticipated benefits.

19 See Entergy Corp. v. Riverkeeper, Inc. , 556 U.S. 208, 222-26 (2009) (interpreting CWA
§ 316(b)) (“It is eminently reasonable to conclude that [the statutory provision’s] silence is
meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-
benefit analysis should be used, and if so to what degree.” Id. at 222.).

20 See Michigan v. EPA, 135 S. Ct. 2699 (2015) (EPA unreasonably refused to consider cost
in determining, pursuant to CAA § 112(n), whether regulation of electric utility emissions
under CAA § 112 was “appropriate and necessary” in light of pre-existing restrictions on
power plant emissions under other CAA programs).

21 Id. at 2708 (“Consideration of cost reflects the understanding that reasonable regulation

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As EPA notes, Executive Order 12866, issued in 1993 and still in effect,
instructs agencies to: (1) “propose or adopt a regulation only upon a reasoned
determination that t he benefits of the int ended regulation justif y its costs,” unless
prohibited by law, and (2) “in choosing am ong alternative regulatory approaches, . . .
select those approaches that maximize net benefits (including potential economic,
environmental, public health and safety, and other advantages; distributive impacts;
and equity) unless a statute requires another regulatory approach.” Executive Order
13563, issued in 2011 and still in effect, r eaffirmed the 1993 order and even more
strongly embraces quantitative benefit-cost balancing. Nothing in the CWA prevents
EPA from following those directives when considering establishing an additional
regulatory program under CWA § 311(j)(1)(C).
EPA should state strongly in its final action that cost-benefit balancing does
not justify any additional regulations addressing CW A hazardous substance
releases. As EPA noted, there may not be any incremental benefit of additional
rules; just because EPA issues a new regul ation intended to reduce the chance of an
uncontained spill does not mean that fac ilities will have any significantly greater
incentive to prevent and contain spills t han already exists. A new regulation might
not, in practice, require facilities to do any thing different than they are already doing
to comply with existing requirements.
It is certain, however, is that a new rule imposing new procedural and
substantive requirements for onshore facilitie s would have significant costs, as the
Regulatory Impact Analysis indicates. It does not require a highly detailed and
validated analysis to know that impos ing new requirements on hundreds of
thousands of onshore facilities can reasonab ly be expected to have costs far in
excess of the benefits from potentially r educing the relatively small number of
reported hazardous substance spills.

ordinarily requires paying attention to the advantages and the disadvantages of agency
decisions.”). (Note that in Michigan all nine justices agreed that, unless the statute states
otherwise, EPA must consider cost at some stage of the regulatory process.) See also
Entergy , 556 U.S. at 234-35 (Breyer, J., concurring in part and dissenting in part) (EPA had
always taken position that, although the CWA provision in question did not require analysis
of costs and benefits, it would not be “reasonable” to interpret the statute to require a
technology whose cost is wholly disproportionat e to the environmental benefit gained from its

22 And, as EPA noted, imposing such costs in fa ct would not prevent many of those spills
from occurring anyway. See , e.g., 83 Fed. Reg. at 29,516 (“no reason to believe a
redundant prohibition…would alleviate the problem of those who already disregard existing
regulations”); 29,519 (there would be “only minimal incremental value in requiring these
provisions [frequently identified in existing regulatory programs] in a new regulation”); id.
(“Even a robust regulatory program where none existed before would not be expected to

EPA Docket ID No. EPA–HQ–OLEM–2018-0024
August 24, 2018
Page 13

5. Conclusion
Existing regulatory and st atutory programs have already satisfied any
requirement to issue regulations under CW A § 311(j)(1)(C). Moreover, the Proposed
Action represents a rational exercise of EPA’s inherent authority to eschew
unnecessary, redundant regulat ions and to avoid imposing new requirements where
the incremental benefits would not ju stify the incremental costs.
The undersigned organizations encourage EPA to invoke this authority and to
issue a final action finding that no additional regulatory requi rements are warranted
under CWA § 311(j)(1)(C). When EPA does so, it should provide a more-
comprehensive discussion of its legal authority and how it applied its analysis of
existing requirements within that legal c ontext, as outlined in these comments.
If you have any questions about these comments or wish to discuss these
issues further, please contact our counsel, Russell Frye, at 202-572-826\
7 or Sincerely,
American Chemistry Council
American Forest & Paper Association
American Fuel & Petrochemical Manufacturers
Associated General Contractors of
National Mining Association
Utility Solid Waste Activities Group
U.S. Chamber of Commerce

cc: Desk Officer for EPA, OMB-OIRA

eliminate all risk.”).