Do the spill prevention, control and countermeasures (“SPCC”) regulations under the CWA apply to oil and gas exploration?

Yes.  Congress passed the Oil Pollution Act (“OPA”) in 1990, which added section 311 to the CWA, providing for spill prevention requirements, spill reporting obligations, and spill response planning.   The OPA regulates the prevention of, and response to, accidental releases of oil and hazardous substances into navigable waters, on adjoining shorelines, or affecting natural resources belonging to or managed by the United States.  

The OPA’s authority is principally exercised through the creation and implementation of response plans.   Such plans establish procedures to prevent the discharge of oil into United States navigable waters and adjoining shore-lines, as opposed to merely responding and cleaning up after a spill occurs.  

The cornerstone of the OPA’s objective to prevent oil spills from reaching the nation’s waters is the oil spill prevention, control, and countermeasure plan (“SPCC”).   The EPA promulgated regulations to implement the SPCC, which specify as follows:

  • SPCC Plans must be prepared, certified (by a professional engineer) and implemented by facilities that store, process, transfer, distribute, use, drill for, produce, or refine oil;
  • Facilities must establish procedures and methods and install proper equipment to prevent an oil release;
  • Facilities must train personnel to properly respond to an oil spill by conducting drills and training sessions; and
  • Facilities must also have a plan that outlines steps to contain, clean up and mitigate any effects that an oil spill may have on waterways.  

Before a facility is subject to the SPCC, however, it must meet three criteria: 

  • It must be non-transportation-related;
  • It must have an aggregate aboveground storage capacity greater than 1,320 gallons (31.4 bbls) or a completely buried storage capacity greater than 42,000 gallons (1,000 bbls); and
  • There must be a reasonable expectation of a discharge into or upon navigable waters of the U.S. or adjoining shorelines.

You can learn more about the Clean Water Act at the EPA’s website at:

https://www.epa.gov/laws-regulations/summary-clean-water-act

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