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November 18, 2016 Articles

Federal Law Requires Facilities to Fortify Against Climate-Change Risks

Federal law provides a mechanism to act to ensure adequate protection for vulnerable communities before a catastrophic spill occurs.

By Allan Kanner, Elizabeth B. Petersen, and Allison S. Brouk – November 18, 2016

While there remains dispute over the exact cause and cure for climate change, the reality of increased severe-weather events, sea-level rise, and intensified storm surges associated with increased levels of greenhouse-gas emissions has been acknowledged by the scientific community, the U.S. government, and members of the oil and gas industry for a number of years. Severe-weather events often result in discharges of oil and other hazardous substances from refineries, storage terminals, and other facilities handling hazardous wastes directly into the environment due to insufficient containment and preventative measures as well as bypasses of existing treatment, storage, and disposal mechanisms not updated to modern standards despite known risks of increased likelihood of these events.

The Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) were enacted in part to protect the public from these risks. As described below, these statutes require that owners and operators of hazardous-waste facilities use the best practices to prepare for and manage hazardous wastes to prevent spills and to minimize all present and future threats to human health and the environment. The citizen-suit provisions of RCRA and the CWA provide mechanisms under which citizens may act in order to protect human health and the environment from threats formed by a failure to guard against climate-change-related impacts at a facility. The first case of this kind was filed in September 2016 by the Conservation Law Foundation and Kanner & Whiteley against ExxonMobil for its alleged failure to follow requirements under federal law to armor the ExxonMobil Everett Terminal in Massachusetts against risks linked to climate change. Conservation Law Foundation v. ExxonMobil Corp., Case No. 1:16-cv-11950-MLW (D. Mass.).

Under the RCRA, a citizen or citizen group may, following the requisite notice provided for in the statute, commence a civil action:

against any person, . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

42 U.S.C. § 9672(a)(1)(B) (emphasis added). This provision requires that there must be a threat that is currently present, although the impact of the threat may not be felt until later. Raytheon Co. v. McGraw Edison Co., Inc., 979 F. Supp. 858, 862 (E.D. Wisc. 1997). “A finding of immanency does not require showing that harm will occur immediately so long as risk of threatened harm is present.” Id. (quoting Prince v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994); see also Maine People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir. 2006) (holding that citizens may file suit under the RCRA when there is “a reasonable prospect of future harm . . . so long as the threat is near-term and involves potentially serious harm”).

To the extent that a company that generates, stores, handles, treats, and disposes of hazardous wastes has failed to incorporate and address this risk of threatened harm, the equitable provisions of RCRA allow for a remedy, in addition to penalties associated with violations of the act, in the form of resilience measures designed to abate and prevent the threat of imminent and substantial endangerment.

The district court shall have jurisdiction . . . to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both. . . .

42 U.S.C. § 6972(a)(1)(B); see also Meghrig v. KFC W., Inc., 516 U.S. 479, 485–86 (1996).

The relief available under RCRA can include injunctive remedies that may fall outside the traditional penalty scheme of the statute:

By enacting the endangerment provisions of RCRA and SDWA, Congress sought to invoke the broad and flexible equity powers of the federal courts in instances where hazardous wastes threatened human health. S. Rep. No. 96-172, 96th Cong., 1st Sess., at 5, reprinted in (1980) U.S. Code Cong. & Ad. News 5019, 5023. Indeed, these provisions have enhanced the courts' traditional equitable powers by authorizing the issuance of injunctions when there is but a risk of harm, a more lenient standard than the traditional requirement of threatened irreparable harm.

United States v. Price, 688 F.2d 204, 211 (3rd Cir. 1982) (additional citations omitted). While not granting the specific relief requested due to the procedural posture of the case, the court, in Price found that it was within the district court’s power to order the defendant to fund a diagnostic study, reasoning that simply because the injunctive relief sought is “uncommon, non-traditional or novel” that the test for equitable relief should still be employed. Id.; see also United States v. Waste Indus., Inc. 734 F.2d 159, 167 (4th Cir. 1984) (“Section 7003 is a congressional mandate that the former common law of nuisance, as applied to situations in which a risk of harm from solid or hazardous waste exists, shall include new terms and concepts which shall be developed in a liberal, not a restrictive manner.”).

The CWA prohibits discharges not authorized by, or in violation of, the terms of a valid National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to 33 U.S.C. § 1342(p). The CWA authorizes citizens to bring suit in federal court against “any person who is alleged to be in violation of the terms and conditions set forth in such NPDES permits.” 33 U.S.C. § 1365. If found to be in violation of permit conditions, the permittee can be subject to injunctive action, civil penalties, and payment of attorney fees and costs. 33 U.S.C. §§ 1319(b), 1319(d), 1365(d).

In addition to effluent limitations, the CWA regulations set forth additional conditions that apply to all NPDES permits, which include various control measures and reporting practices that all permittees must implement to guard against discharge incidents related to climate change-induced events. For example:

  • “[t]he permittee shall take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment,” 40 C.F.R. § 122.41(d);
  • the permittee shall “at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of th[e] permit, ” Id. §122.41(e); and
  • all permittees “shall furnish to the Director, within a reasonable time, any information which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or terminating th[e] permit or to determine compliance with th[e] permit.” Id. §122.41(h).

Consistent with these provisions, a permittee must anticipate, consider, and guard against scenarios that may result in discharges outside the construct of the permit scheme. This responsibility is ongoing.

The U.S. Environmental Protection Agency’s (EPA) standard permit conditions for all NPDES permits, which are appended to every EPA-issued NPDES permit, reiterate the aforementioned permit requirements, see NPDES Standard Conditions (Jan. 2007), Part II.B.3; Part II.B.1; Part II.A.3, and also include a requirement that “[w]here the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Regional Administrator, it shall promptly submit such facts or information." Id. Part II.D.1.h.

The CWA also requires the owner or operator of an onshore or offshore facility to prepare and implement a spill prevention control and countermeasure plan (SPCC), 40 C.F.R. § 112.3, which is a plan intended to minimize the likelihood of a spill and to expedite control and cleanup activities should a spill occur. 40 C.F.R. § 112.1(e). “The SPCC Plan must address all relevant spill prevention, control and countermeasures necessary at the specific facility.” 40 C.F.R. § 112.1(e). Additionally, the SPCC plan must be prepared in accordance with good engineering practices, taking into consideration applicable industry standards. 40 C.F.R. § 112.3(d) (requiring that a licensed professional engineer review and certify that the plan satisfies the requirements of the part). Where there exists a reasonable potential for equipment failure—for example, a tank overflow, rupture, or leakage—the plan must include a prediction of the direction, rate of flow, and total quantity of oil that could be discharged from the facility as a result of each type of major equipment failure. 40 C.F.R. § 112.7(b). Appropriate containment and diversionary structures must be provided to prevent discharges resulting from such failures. 40 C.F.R. § 112.7(c).

In addition to a SPCC, the CWA requires the development of a stormwater pollution prevention plan (SWPPP) to comply with a NPDES permit. A SWPPP must identify potential sources of stormwater pollution at a particular site and describe stormwater control measures and best management practices (BMPs) that will be used to reduce or eliminate pollutants in stormwater discharges from the site. BMPs are defined as “methods, measures or practices selected by an agency to meet its nonpoint source control needs” and can include both structural and non-structural controls. 40 C.F.R. § 130.2(Q). Failure to develop and implement a SPCC or SWPPP that complies with all requirements and adequately guards against future discharges related to a climate-change-related event is a violation of the CWA and grounds for bringing an action to recover injunctive relief and civil penalties.

Therefore, pursuant to both the RCRA and the CWA, owners and operators of hazardous-waste facilities should consider and act upon the vast amount of information now available regarding the certainty of the changing climate and the associated impacts in spill-prevention planning and waste-management practices. Otherwise, communities may be exposed to toxic pollutants whenever severe flooding or a severe weather event occurs. Federal law provides a mechanism to act to ensure adequate protection for vulnerable communities before a catastrophic spill occurs.

Note: Allan Kanner, Elizabeth B. Petersen, and Allison S. Brouk are with Kanner & Whiteley, LLC in New Orleans, Louisiana. The firm represents the Conservation Law Foundation in an action brought against ExxonMobil Corp. pursuant to the citizen suit provisions of the Resource Conservation and Recovery Ac tand the Clean Water Act alleging violations related to ExxonMobil’s failure to fortify its Everett Terminal against impending risks associated with climate change. That case is pending before the U.S. District Court for the District of Massachusetts.

Keywords: environmental litigation, RCRA, CWA, climate change

Allan Kanner, Elizabeth B. Petersen, and Allison S. Brouk are with Kanner & Whiteley, LLC in New Orleans, Louisiana.

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