Category Archives: Clean water Act

EPA reached largest Clean Water Act settlement in the Gulf Oil Spill case

EPA just announced the first major settlement with a company connected with the BP oil spill in the Gulf.

MOEX Offshore 2007 LLC has agreed to settle its liability in the Deepwater Horizon oil spill in a settlement with the United States valued at $90 million, announced the Department of Justice, the U.S. Coast Guard and the U.S. Environmental Protection Agency (EPA) today.  Approximately $45 million of the $90 million settlement is going directly to the Gulf in the form of penalties or expedited environmental projects.

According to the terms of the settlement, MOEX will pay $70 million in civil penalties to resolve alleged violations of the Clean Water Act resulting from the spill and agreed to spend $20 million to facilitate land acquisition projects in several Gulf states that will preserve and protect in perpetuity habitat and resources important to water quality and other environmental features of the Gulf of Mexico region.  At the time of the spill, MOEX was a minority investor in the lease for the Macondo well. It no longer owns any share of the lease.

This is the largest Clean Water Act penalty to-date. MOEX owned 10% interest in the Macondo well and settled for $90 million. Just imagine how much BP will pay in final settlement.

When do you have to revise your SPCC?

The regulations say that you must revise your SPCC plan if there are “material changes” in your operation. What exactly is “material change”?

If the petroleum product  you store on site changes from diesel to gasoline, you have made a material change in your operation. You have gone from a combustible product to a flammable product. You must revise your plan. If you change your grade of gasoline from one octane to another, that would not be considered to be a material change.

Another point to remember about SPCC is that it refers to the amount of petroleum product you have onsite at any given time. So you are a marketer of gasoline and you purchase 5500 gallons at one time and then you deliver smaller quantities to your customers over the year until you have 500 gallons left onsite. You are still required to have a SPCC plan since you have more than 1320 gallons during the year.

We discuss SPCC requirements at our 2-day environmental seminars.

Is BP liable under the Superfund Law?

The short and quick answer is NO. BP is not liable for the spilled oil (petroleum products) under the Superfund Law because of the “Petroleum Exclusion” clause in the law.

Section 101(14) of the Superfund Law specifically excludes “petroleum, including crude oil or any fraction thereof” from the definition of “hazardous substance”. You can only be liable under the Superfund Law if you release hazardous substances to the environment.

Now – does that mean BP is off the hook completely? Not at all. BP is liable under the Clean Water and the Oil Pollution Act – just to name a few environmental laws.

Read my earlier blog on BP’s potential liability.

How to neutralize your hazardous waste without a permit

Let’s say you have a waste that is hazardous solely because it exhibits the corrosivity characteristic (a D002 characteristic waste), you can neutralize it chemically in a tank or container prior to discharging it through a permit under the Clean Water Act. This is known as the Elementary Neutralization Unit Exemption.

This exemption will not apply if your waste also exhibits other hazardous characteristics (such as ignitability, toxicity or reactivity) or if it is a listed hazardous waste. Under this exemption, the unit (tank or container) where the neutralization occurs is exempt from RCRA standards. However, any sludge that comes out of this process is not exempt. If the sludge exhibits any hazardous characteristic, it will need to be managed as hazardous waste under RCRA.

Another point top remember is that if you have a separate container that is holding your D002 waste waiting to be neutralized, that container is NOT a treatment unit.neutra

Under this Federal exemption, you will not need to obtain a CRA Part B permit in order to treat your hazardous waste. Note that not all states have adopted this exemption. So always check with your state agencies.

EPA on enforcement of the Clean Water Act

lisaonbrownAt a recent Congressional hearing, EPA Administrator Lisa Jackson announced that her agency will be stepping up enforcement of the Clean Water Act. It will be placing more focus on concentrated animal feeding operations, sewer overflows, contaminated water that flows from industrial facilities, construction sites, and runoff from urban streets.

This is another step by the current administration to step away from the approach taken by the last one.

New directions from the Obama EPA

270In less than a year into its new administration, the Obama White House and its EPA Administrator Lisa Jackson have already made quite an imprint on the environmental regulatory landscape.

During his first month in office, President Obama directed EPA to review the action taken by the previous administration in prohibiting California from regulating automobile carbon dioxide emissions. This directive followed the Supreme Court’s ruling under Massachusetts v EPA that carbon dioxide is an air pollutant under the Clean Air Act and that EPA must regulate it if it is found to cause harm to public health and welfare.

EPA promptly issued a draft endangerment study on April 14, 2009 proposing that CO2 and other greenhouse gases pose a threat to public health and welfare. On July 1, 2009, EPA reversed the Bush administration’s decision and allowed California to regulate CO2 from tail pipes.

The Obama EPA is tackling the greenhouse gas issues on two fronts. It is working with Congress to develop new cap-and-trade laws to reduce greenhouse gas while developing its own regulations under the Clean Air Act to regulate it.

On September 30, 2009, Lisa Jackson announced that EPA is proposing new regulation under the Clean Air Act to curb greenhouse gas from industries that emit more than 25,000 tons of CO2 per year. This would bring many plants under the new regulation if it becomes final.

The Obama EPA has also dropped a Bush plan to exempt some 3,500 facilities from reporting chemical releases under the Toxic release Inventory. You can expect to see a few more rule reversals in the future.

Dilution as a solution to pollution

wastewater dischargeYes – Virginia – there is a Santa Claus. There is also a mixing zone – where you can use dilution as a solution to pollution.

Under EPA regulation 40 CFR 131.13, states “may, at their discretion, include in their State standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances. such policies are subject to EPA review and approval.”

Mixing zones are defined as “a limited area or volume of water where initial dilution of a discharge takes place and where numeric water quality criteria can be exceeded but acutely toxic conditions are prevented from occurring.”

Many states – including California – allow mixing zones. If you are applying for a permit to discharge your waterwater directly to the navigable waters of the United States, you might want to seriously consider including a mixing zone in your application. The benefits to you can be enormous.

Once you obtain a mixing zone for a particular wastewater parameter, you will only need to meet that parameter’s water quality standard at the edge of the mixing zone. Without a mixing zone, you will have to meet the water quality standard at the end of your discharge pipe.  Mixing zones usually carry a dilution ratio of 100:1. That means you only need to treat your waste parameter down to 100 times the concentration of its water quality standard at the end of your pipe. The dilution effect of the mixing zone will bring the concentration down to the water quality standard level at the edge of the mixing zone.

To get a mixing zone, you will need to do computer modelling of your discharge plume taking into consideration the depth, water quality and flow conditions of your receiving water. You must follow your state agency’s guidelines on mixing zones.