The U.S. Environmental Protection Agency (“EPA”) in Region 7 which covers Nebraska, Iowa, Kansas, and Missouri, recently reached a settlement agreement with BG Products Inc. (“BG”) to resolve violations of the federal Clean Water Act (“CWA”). The settlement requires BG to pay over one quarter of a million dollars for its failure to develop, implement, and maintain a Spill Prevention Control and Countermeasure (“SPCC”) plan.^[1] The automotive company has manufacturing facilities near the Arkansas and Walnut rivers in Kansas where it stores significant volumes of petroleum.

SPCC plans are required under federal law to prevent the discharge of oil into navigable waters of the United States or adjoining shorelines, such as rivers, lakes, or streams. As we know, oil spills negatively affect the environment, human health, and the business operations of a facility. What is less apparent is the number of facilities that require a SPCC plan: any facility storing more than 1,320 gallons aboveground and/or more than 42,000 gallons underground of oil in containers of 55-gallons or more with the possibility that a release of such oil could reach waters of the U.S. requires a SPCC plan. This rule applies to any oil a company may store including petroleum-based products such as diesel or gasoline; hydraulic oil; crop oil; and even vegetable oil. SPCC plans are typically required to be certified by a professional engineer (“PE”) and must be updated every five (5) years. The goal of the plan is to ensure that proper equipment and planning is in place in the event of a spill. As a result, plans frequently require that tanks have proper secondary containment and overflow prevention devices in place and other methods to contain a spill. The plans also require employee training and frequent facility inspections. A copy of the plan is to remain at the facility for reference.

Given the breadth of the federal law, businesses frequently either overlook SPCC requirements or are unaware of the rule. This is especially true with those that store bulk oil in quantities near the threshold amount.  

Keep the following considerations in mind in determining if your facility could require a SPCC plan:

• Only count oil storage containers with the capacity to hold 55-gallons or greater toward the overall 1,320 or 42,000 gallon number, respectively.
• Even if the tank is empty, it is the tank’s capacity that counts – unless the tank has been properly decommissioned.
• Any oil will do including but not limited to: petroleum; fuel oil; sludge; oil refuse; oil mixed with wastes other than dredged spoil; fats, oils or greases of animal, fish, or marine mammal origin; vegetable oils, including oil from seeds, nuts, fruits, or kernels; and other oils and greases, including synthetic oils and mineral oil.^[2]
• 1,320 gallons is a precise amount: storing just under this amount may make your facility exempt from the SPCC plan’s requirements. Likewise, storing just above this amount may trigger your facility to implement a proper plan.
• Do not jump to the conclusion that a spill at your facility would not impact water quality. EPA applies this rule very broadly.
• If you feel your facility might require a SPCC plan, a qualified professional’s review of the property would be in your best interest to ensure compliance with federal law.

Companies with storage capacity of oil in tanks or containers greater than 55-gallons should be aware of the scope and application of the SPCC plan’s requirements and comply with such requirements to minimize or avoid liability for its violation. A formal evaluation by a qualified professional is advisable if you consider your facility on the threshold of the rule’s requirement.

^{[1] See “EPA Reaches Settlement with BG Products Inc. for Alleged Clean Water Act Violations in Kansas” available at https://www.epa.gov/newsreleases/epa-reaches-settlement-bg-products-inc-alleged-clean-water-act-violations-kansas.}

^{[2] 40 C.F.R. § 112 (2023) and EPA Summary Overview available at https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/overview-spill-prevention-control-and (last updated March 2023).}  

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