B&D advises clients on matters arising under Section 311 of the Clean Water Act (CWA), offering comprehensive experience with preventing, detecting, reporting, and responding to oil and hazardous substance spills and related emergency situations. Our clients include companies in the petroleum refining, midstream gas processing, pipeline, acid manufacturing, fertilizer manufacturing, other chemical manufacturing, and chemical storage/warehousing sectors.

This work includes compliance advice, auditing and enforcement defense with regard to the CWA’s Section 311 spill and release reporting requirements, including prevention, control, and countermeasure (SPCC) plan and Facility Response Plan (FRP) requirements; and applicability of and requirements under the Oil Pollution Act.

When spills or releases occur, we assist clients in determining whether notification is required and in complying with notification procedures to local, state, or federal agencies. This includes reporting and responding to spills and releases from underground and aboveground storage tanks, bulk hazardous substance and petroleum storage facilities, and transportation-related releases. We also help clients interface with investigators and claimants’ counsel, develop internal and external messaging, provide strategic advice regarding personal injury litigation risk, negotiate with government agencies and stakeholders regarding post-incident remediation and testing protocols, and defend subsequent personal injury litigation.

Our team includes lawyers with high-level federal government experience at DOJ and EPA, including a former DOJ senior trial attorney in the Environmental Enforcement Section of the Environment and Natural Resources Division and a former EPA Regional Counsel.

Select Representative Work

• B&D assisted a prominent plastic film manufacturing company respond to an EPA SPCC enforcement action arising out of a post-spill EPA inspection, develop and implement a compliant SPCC plan, and leverage necessary improvements to offset potential enforcement penalties.
• B&D has worked with numerous industrial clients to evaluate the scope of their SPCC or FRP Plans with regard to materials that fall within the EPA and Coast Guard’s respective definitions of oil and hazardous substance. Improper classification of materials subject to SPCC Plan requirements can result in significant over-or under-inclusion of storage capacities in critical SPCC Plan requirements such as secondary containment and inspections.
• B&D has conducted numerous compliance audits of facilities’ SPCC and FRP Plans, including making disclosures and corrective actions under EPA’s Audit Policy to gain civil penalty forgiveness.
• B&D has assisted with the mediation and litigation of commercial indemnity disputes regarding capital improvements made for SPCC Plan compliance in the context of corporate ownership changes of complex industrial operations.