On July 28, 2015, the National Wildlife Federation (NWF) informed the U.S. Department of Transportation (DOT) of its intent to sue for violations of the Clean Water Act (CWA) § 311(j) and Executive Order 12777 (which guides federal implementation of the Oil Pollution Act of 1990). Specifically, NWF alleges that DOT has for over 20 years failed to issue regulations requiring an owner or operator of an offshore facility landward of the coast line to prepare and submit a facility response plan (FRP) applicable to discharges of oil or hazardous substances to waters of the United States. NWF Notice of Intent Letter, at 1. According to NWF, issuing such regulations is a non-discretionary duty under the CWA.
DOT regulations at 49 C.F.R. Part 194 require FRPs for onshore facilities, and the U.S. Department of Interior, Bureau of Safety and Environmental Enforcement regulations at 30 C.F.R. Part 254 require FRPs for offshore facilities, meaning “the area seaward of the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the area seaward of the line marking the limit of inland waters.” 58 Fed. Reg. 7489, 7490 (Feb. 8, 1993).
NWF argues that DOT has not authorized PHMSA to review or approve FRPs for offshore pipelines landward of the coastline located in waters of the United States, nor to issue regulations requiring owners or operators of such pipelines to prepare and submit FRPs. NWF alleges that this creates a gap in the federal regulatory requirements associated with FRPs. As an example, NWF points to the fact that DOT has not required and has not approved FRPs for lines such as sections of an Enbridge offshore pipeline (“Line 5”) located under the Straits of Mackinac, the St. Clair River, and other inland navigable waters. Apparently, Enbridge prepared and submitted FRPs for these sections of Line 5 to PHMSA, but the Agency declined to approve them, as it has not been authorized by DOT to review or approve FRPs for offshore pipelines landward of the coastline. NWF argues that DOT must establish a regulatory requirement for owners or operators of such lines to prepare, submit, and obtain approval of an FRP and that if DOT fails to do so, it is in violation of CWA § 311(j)(5)(A)(i).
The focus of the letter and NWF’s potential suit is on inland waters that are jurisdictional under the CWA, which highlights the importance of the U.S. EPA and Army Corps of Engineers’ May 27, 2015 final rule defining “waters of the United States.” NWF has threatened to sue DOT within sixty days if it does not issue the regulations that NWF alleges are required. This would be the second lawsuit brought against DOT and its sub-agencies in the last few years concerning FRPs. PHMSA was sued in 2013 by a watchdog group, Public Employees for Environmental Responsibility (PEER), over the Agency’s failure to produce copies of operators’ FRPs (and related records) that the group had requested under the Freedom of Information Act (FOIA). The suit is still pending, with PHMSA filing regular status reports informing the court of its progress in producing the requested records.