Spill Planning

Federal and state requirements for preparing and implementing plans and procedures to prevent and control spills of oil and other regulated substances apply to a variety of industrial and commercial facilities. MGKF has considerable experience counseling clients in evaluating the applicability of spill planning requirements, designing, updating, and implementing spill plans, and defending enforcement actions brought under relevant statutes and regulations. (In addition to spill planning, we also assist clients with responses to spill incidents.)

At the federal level, Spill Prevention, Control and Countermeasure ("SPCC") plan requirements are applicable under the Clean Water Act, as amended by the Oil Pollution Act of 1990, to facilities that meet certain threshold criteria relating to oil storage capacity and may reasonably be expected to discharge harmful quantities of oil into a surface water or adjoining shoreline. The SPCC rules may impact bulk petroleum facilities as well as operations storing or using products such as heating oil, diesel fuel, gasoline, animal fats, and vegetable oils. SPCC requirements are intended to ensure that oil storage facilities comply with design standards and operating procedures reducing the potential for spills and improving responses to spill incidents.

Certain facilities may also be required to develop and implement similar spill or release prevention and response plans for oil or other regulated substances under various federal programs, such as:

Facility Response Plans ("FRPs") required by EPA, the U.S. Department of Transportation, the U.S. Coast Guard, and/or the U.S. Department of the Interior pursuant to the Clean Water Act;
EPA Risk Management Plans ("RMPs") under the Clean Air Act;
Contingency Plans for hazardous waste facilities regulated by EPA or delegated state agencies pursuant to the Resource Conservation and Recovery Act; and
U.S. Occupational Safety and Health Administration ("OSHA") Emergency Action Plans ("EAPs").

States may impose different or overlapping spill planning requirements. Examples include the Discharge Prevention, Containment and Countermeasure ("DPCC") and Discharge Cleanup and Removal ("DCR") plans required by the New Jersey Department of Environmental Protection pursuant to its Discharges of Petroleum and Other Hazardous Substances rule, and Spill Prevention Response plans required by the Pennsylvania Department of Environmental Protection under the Storage Tank and Spill Prevention Act. In some instances, facilities may also be subject to local spill planning requirements.

The combined experience and skill of our in-house technical consultants and attorneys has allowed MGKF to provide clients with a unique team approach to the myriad legal and practical aspects of spill planning. For instance, the firm has evaluated whether particular facilities satisfy threshold criteria for being regulated under such programs. We have reviewed spill plans prepared by clients and outside consultants for consistency with applicable regulations, and assisted clients in determining the most cost-effective methods of implementing particular requirements. MGKF has prepared spill plan templates to be used by clients and their consultants at multiple facilities. We have also helped clients consolidate separate plans required by different programs into a single integrated contingency plan ("ICP"), allowing facilities to streamline spill plan implementation while still complying with all applicable regulations. In addition, MGKF represents clients in defending enforcement actions brought by regulatory agencies related to spill planning requirements.

Representative matters involving spill planning include the following:

MGKF worked with a national telecommunications company and its outside consultant to develop a template SPCC plan used to prepare such plans for dozens of facilities nationwide.
MGKF worked with a client and its consultant to develop a comprehensive ICP for the client's refining and chemical manufacturing facility. The ICP consolidated several federal, state, and local spill and emergency response planning requirements into a unified document and streamlined the client's emergency response plan.
MGKF has counseled numerous chemical and manufacturing clients on SPCC applicability and implementation issues and worked with them to develop practical strategies for addressing complex regulatory issues with potentially significant capital ramifications.
MGKF provided analysis and counseling to a gas transmission company on the applicability of EPA's Clean Air Act Section 112(r) RMP program to its operations and the scope of available exemptions.
MGKF successfully negotiated the settlement of an OSHA enforcement action related to emergency action planning and response for an oil refining and chemical company.