[Federal Register Volume 87, Number 59 (Monday, March 28, 2022)]
[Proposed Rules]
[Pages 17890-17935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05505]
[[Page 17889]]
Vol. 87
Monday,
No. 59
March 28, 2022
Part III
Securities and Exchange Commission
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40 CFR Parts 118 and 300
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Clean Water Act Hazardous Substance Worst Case Discharge Planning
Regulations; Proposed Rule
Federal Register / Vol. 87 , No. 59 / Monday, March 28, 2022 /
Proposed Rules
[[Page 17890]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 118 and 300
[EPA-HQ-OLEM-2021-0585; FRL-7881-02-OLEM]
RIN 2050-AH17
Clean Water Act Hazardous Substance Worst Case Discharge Planning
Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Clean Water Act (CWA) states that regulations shall be
issued which require an owner or operator of a facility to prepare and
submit a plan for responding, to the maximum extent practicable, to a
worst case discharge, and to a substantial threat of such a discharge,
of a hazardous substance. The Environmental Protection Agency (EPA or
Agency) proposes to require planning for worst case discharges of CWA
hazardous substances for onshore non-transportation-related facilities
that could reasonably be expected to cause substantial harm to the
environment by discharging CWA hazardous substances into or on the
navigable waters, adjoining shorelines, or exclusive economic zone.
DATES: Comments must be received on or before May 27, 2022.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2021-0585, by any of the following methods:
-- Federal eRulemaking Portal: https://www.regulations.gov/ (our
preferred method). Follow the online instructions for submitting
comments.
-- Mail: U.S. Environmental Protection Agency, EPA Docket Center, EPA-
HQ-OLEM-2021-0585 Docket, Mail Code 28221T, 1200 Pennsylvania Avenue
NW, Washington, DC 20460.
-- Hand delivery or courier (by scheduled appointment only): EPA Docket
Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW,
Washington, DC 20004. The Docket Center's hours of operations are 8:30
a.m. to 4:30 p.m., Monday through Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are open to the public by
appointment only to reduce the risk of transmitting COVID-19. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries and couriers may be
received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online
at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Rebecca Broussard, Office of Emergency
Management, Mail Code 5104A, Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-6706; email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Written Comments
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the costs and benefits of this action?
E. List of Abbreviations and Acronyms
III. Background
A. Statutory Authority and Delegation of Authority
1. Statutory Requirements
2. Delegation of Authority
B. CWA Hazardous Substance Designation and Reportable Quantities
C. Regulatory Background
1. EPA CWA Hazardous Substance Actions
2. EPA Oil Pollution Prevention Regulation
3. USCG CWA Hazardous Substance Worst Case Discharge Actions
D. Litigation
E. CWA Hazardous Substance Discharge History and Impacts
Analysis
1. Discharge History and Reported Impacts
2. Most Frequently Discharged CWA Hazardous Substances
3. Impacts to Waterways and Sensitive Environments
4. NRC Data Limitations
5. Data Sources Examined
F. Analysis of Existing Regulatory Programs
IV. Proposed Action
A. Applicability Criteria
1. Screening Criteria
2. Substantial Harm Criteria
3. Other Applicability Criteria
4. Worst Case Discharge Calculations
5. Substantial Harm Certification Form
B. Response Planning
1. Consistency With NCP and ACPs
2. LEPC or TEPC Coordination
3. QI Designation and Duties
4. CWA Hazardous Substance FRP Components
C. Implementation and Enforcement
1. Office Delegation
2. Compliance Dates
3. Confidential Business Information
4. Appeals Process
5. Stakeholder Petitions
6. Consistency With the NCP
D. Additional Considerations
1. Communities With Environmental Justice Concerns
2. Climate Change
3. Facility Density
V. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2021-
0585 at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section, above. Once
submitted, comments cannot be edited or removed from the docket. The
EPA may publish any comment received to its public docket. Do not
submit to EPA's docket at https://www.regulations.gov any information
you consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full
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EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets.
Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
The EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that the Agency can
respond rapidly as conditions change regarding COVID-19.
II. General Information
A. Does this action apply to me?
A list of NAICS codes at the three-digit level that could be
affected by requirements established under CWA section 311(j)(5) is
provided in Table 1:
Table 1--Entities Potentially Affected by the Proposed Rule
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North American industry
NAICS 3 classification system (NAICS)
description
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111.................................... Crop Production
115.................................... Support Activities for
Agriculture and Forestry
211.................................... Oil and Gas Extraction
212.................................... Mining (except Oil and Gas)
213.................................... Support Activities for Mining
221.................................... Utilities
311.................................... Food Manufacturing
314.................................... Textile Product Mills
321.................................... Wood Product Manufacturing
322.................................... Paper Manufacturing
324.................................... Petroleum and Coal Products
Manufacturing
325.................................... Chemical Manufacturing
326.................................... Plastics and Rubber Products
Manufacturing
327.................................... Nonmetallic Mineral Product
Manufacturing
331.................................... Primary Metal Manufacturing
332.................................... Fabricated Metal Product
Manufacturing
333.................................... Machinery Manufacturing
335.................................... Electrical Equipment,
Appliance, and Component
Manufacturing
336.................................... Transportation Equipment
Manufacturing
423.................................... Merchant Wholesalers, Durable
Goods
424.................................... Merchant Wholesalers,
Nondurable Goods
441.................................... Motor Vehicle and Parts Dealers
444.................................... Building Material and Garden
Equipment and Supplies Dealers
447.................................... Gasoline Stations
453.................................... Miscellaneous Store Retailers
488.................................... Support Activities for
Transportation
493.................................... Warehousing and Storage
511.................................... Publishing Industries (except
internet)
522.................................... Credit Intermediation and
Related Activities
562.................................... Waste Management and
Remediation Services
611.................................... Educational Services
622.................................... Hospitals
811.................................... Repair and Maintenance
812.................................... Personal and Laundry Services
928.................................... National Security and
International Affairs
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This table is not intended to be exhaustive, but rather provides a
likely minimal set of affected entities likely to be regulated by this
action. This table lists the types of entities that EPA is aware could
potentially be subject to this proposed action. Other types of entities
not listed in the table may also be subject to this proposed action. To
determine whether your facility is subject to this proposed action, you
should carefully examine the applicability criteria proposed in Sec.
118.3. If you have questions regarding the applicability of this action
to a particular entity or facility, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.
B. What action is the Agency taking?
The EPA is proposing new requirements for Facility Response Plans
(FRPs) for worst case discharges of CWA hazardous substances for
onshore facilities that, because of their location, could reasonably be
expected to cause substantial harm to the environment by discharging
into or on the navigable waters, adjoining shorelines, or exclusive
economic zone.
C. What is the Agency's authority for taking this action?
This proposal is authorized by section 311(j)(5) and 501(a) of the
CWA, (33 U.S.C. 1321(j)(5), 1361(a)).
D. What are the costs and benefits of this action?
EPA estimated the total costs of the proposed action by combining
the per-facility estimates of compliance costs with the estimate of the
affected facility universe. EPA estimated the annualized cost of the
proposed rule over a 20-year analysis period, using three percent and
seven percent discount rates, as presented in Table 2.
Table 2--Total Compliance Cost of the Proposed Action, 20-Year Present Value and Annualized ($2020)
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Present value, Annualized cost, Present value, Annualized cost,
7% 7% 3% 3%
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Cost................................ $300,375,193 $28,353,293 $410,322,776 $27,580,136
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EPA also estimated the annualized cost of the proposed action to
EPA to develop and implement the proposed requirements, which can be
found in the Regulatory Impact Analysis (RIA) titled, ``Regulatory
Impact Analysis: Clean Water Act Hazardous Substance Worst Case
Discharge Planning Regulations,'' available in the docket for this
action. The proposed action is expected to have a mitigating effect on
CWA hazardous substance worst case discharges because the proposed rule
provisions address the kind of damages and adverse impacts expected
from this type of discharge. The planning activities associated with
developing CWA hazardous substance FRPs are likely to mitigate several
damage categories through pre-discharge planning and identification of
potential receptors and applicable endpoints; the emergency response
information provisions; descriptions of discharge detection systems,
hazard evaluation, and training programs; and drills and exercises.
Information on previous worst case discharges of a similar nature
suggests that the benefits of mitigating these
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discharges could be large relative to the proposed rule's estimated
cost.
Sections 6 and 7 of the RIA developed for this proposed action
provide additional details on costs and benefits, respectively, and EPA
solicits comment on the contents therein and associated data sources.
E. List of Abbreviations and Acronyms
ACP Area Contingency Plan
AEGLs Acute Exposure Guideline Levels for Airborne Chemicals
ANPRM Advanced Notice of Proposed Rulemaking
APA Administrative Procedures Act
AWIA America's Water Infrastructure Act
BHP Biodegradation, Hydrolysis, and Photolysis
CAA Clean Air Act
CASRN Chemical Abstract Service Registry Numbers
CBI Confidential Business Information
CCC Criterion Continuous Concentration
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
CMC Criterion Maximum Concentration
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act of 1980
CFATS Chemical Facility Anti-Terrorism Standards
CTAC Chemical Transportation Advisory Committee
CWA Clean Water Act
DHS United States Department of Homeland Security
DOI United States Department of the Interior
DOT United States Department of Transportation
EJSCREEN Environmental Justice Screening and Mapping Tool
E.O. Executive Order
EPA United States Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
ERAP Emergency Response Action Plan
ERPGs Emergency Response Planning Guidelines
FR Federal Register
FRP Facility Response Plan
FWSE Fish, Wildlife, and Sensitive Environments
HAZWOPER Hazardous Waste Operations and Emergency Response
ICR Information Collection Request
ICS Incident Command System
IDLH Immediately Dangerous to Life or Health
IRIS Integrated Risk Information System
LC50 Lethal Concentration 50%
LD50 Lethal Dose 50%
LEPC Local Emergency Planning Committee
MCL Maximum Contaminant Level
MOU Memorandum of Understanding
MRLs Minimum Risk Levels
MSHA Mine Safety and Health Administration
MTR Marine Transportation Related
NAICS North American Industry Classification System
NCP National Contingency Plan
NIIMS National Interagency Incident Management System
NIOSH National Institute for Occupational Safety and Health
NOAA National Oceanic and Atmospheric Administration
NPDES National Pollutant Discharge Elimination System
NPRM Notice of Proposed Rulemaking
NRC National Response Center
NTSIP National Toxic Substance Incidents Program
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSC On-Scene Coordinator
OSHA Occupational Safety and Health Administration
OSRO Oil Spill Removal Organization
PALs Provisional Advisory Levels for Hazardous Agents
PCBs Polychlorinated Biphenyls
PHMSA Pipeline and Hazardous Materials Safety Administration
PRA Paperwork Reduction Act
PREP Preparedness for Response Exercise Program
QI Qualified Individual
RA Regional Administrator
RCP Regional Contingency Plan
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RMP Risk Management Plan
RQ Reportable Quantity
SBA Small Business Administration
SDWA Safe Drinking Water Act
SERC State Emergency Response Commission
SMCRA Surface Mining Control and Reclamation Act
SPCC Spill Prevention Control, and Countermeasure
SRO Spill Response Organization
SWPA Source Water Protection Area
TBD Technical Background Document
TEPC Tribal Emergency Planning Committee
TERC Tribal Emergency Response Commission
TRI Toxics Release Inventory
TSCA Toxic Substances Control Act of 1976 as amended by the
Lautenberg Act
TSDF Treatment, Storage, and Disposal Facility
UMRA Unfunded Mandates Reform Act
USCG United States Coast Guard
UST Underground Storage Tank
III. Background
A. Statutory Authority and Delegation of Authority
1. Statutory Requirements
The CWA as amended by the Oil Pollution Act of 1990 (33 U.S.C. 2701
et seq; hereafter, ``OPA 90''), states, ``The President shall issue
regulations which require an owner or operator of a tank vessel or
facility . . . to prepare and submit to the President a plan for
responding, to the maximum extent practicable, to a worst case
discharge, and to a substantial threat of such a discharge, of oil or a
hazardous substance'' (33 U.S.C. 1321(j)(5)(A)(i)). For this action, a
facility is determined to be ``. . . [an] onshore facility that,
because of its location, could reasonably be expected to cause
substantial harm to the environment by discharging into or on the
navigable waters,\1\ adjoining shorelines, or the exclusive economic
zone'' (33 U.S.C. 1321(j)(5)(C)(iv)). As described below, the
Administrator has been delegated this authority under E.O. 12777 (56 FR
54757, October 18, 1991). The Administrator also has authority under
CWA section 501 to prescribe such regulations as are necessary to carry
out provisions of the Act. In 33 U.S.C. 1321(j)(5)(D), the CWA states
that these response plans must:
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\1\ Navigable waters are defined in 40 CFR 120.2 as waters of
the United States, including the territorial seas. This document
will refer to ``navigable water'' to include ``adjoining shorelines
and the exclusive economic zone.''
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(1) Be consistent with the National Contingency Plan (NCP) and Area
Contingency Plans (ACP);
(2) Identify the qualified individual (QI) having full authority to
implement removal actions, and require immediate communications between
that individual and the appropriate Federal official and the persons
providing personnel and equipment;
(3) Identify, and ensure by contract or other means approved by the
President the availability of private personnel and equipment necessary
to remove to the maximum extent practicable a worst case discharge
(including a discharge resulting from fire or explosion), and to
mitigate or prevent a substantial threat of such a discharge;
(4) Describe the training, equipment testing, periodic unannounced
drills, and response actions of persons on the vessel or at the
facility, to be carried out under the plan to ensure the safety of the
vessel or facility and to mitigate or prevent the discharge, or the
substantial threat of a discharge;
(5) Be updated periodically; and
(6) Be resubmitted for approval of each significant change.
EPA's responsibilities in the CWA (33 U.S.C. 1321(j)(5)(E)) for
this action for onshore facilities that could reasonably be expected to
cause significant and substantial harm to the environment by
discharging into or on the navigable waters are to:
(1) Promptly review plans;
(2) Require amendments when plans do not meet the statutory
requirements;
(3) Approve plans; and
(4) Review each plan periodically.
Additionally, EPA may require inspection of containment booms,
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skimmers, vessels, and other major equipment used to remove discharges
(33 U.S.C. 1321(j)(6)(A)). EPA also has the authority to conduct
unannounced drills of removal capability in areas for which Area
Contingency Plans (ACPs) are required and under relevant FRPs (33
U.S.C. 1321(j)(7)).
2. Delegation of Authority
Under E.O. 12777 (56 FR 54757, October 18, 1991), EPA was delegated
the authority to regulate non-transportation-related onshore facilities
and non-transportation-related offshore facilities landward of the
coastline.\2\ DOT was the delegated authority for transportation-
related facilities and the U.S. Coast Guard (USCG) was delegated the
authority for tank vessels and marine transportation-related (MTR)
facilities. Section 2(i) of E.O. 12777 allows for further delegation
between the agencies as later occurred in a February 3, 1994 MOU
between EPA, the U.S. Department of the Interior (DOI), and DOT (59 FR
9494, February 28, 1994). DOI redelegated 33 U.S.C. 1321(j)(5)
authority to regulate non-transportation-related offshore facilities
landward of the coastline to EPA. This MOU applies to both oil and CWA
hazardous substance facilities.
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\2\ E.O. 12777 Implementation of Section 311 Of The Federal
Water Pollution Control Act of October 18, 1972, as Amended, and the
Oil Pollution Act of 1990. See https://www.archives.gov/federal-register/executive-orders/1991.html#12777.
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EPA has delegated authority over offshore facilities landward of
the coastline as per 40 CFR part 112 Appendix B. However, this action
is limited to non-transportation-related onshore facilities as defined
in the consent decree described in Section III.D of this document. EPA
solicits data, information, and comment on CWA hazardous substance
facilities located offshore landward of the coastline and their
regulation under this action.
B. CWA Hazardous Substance Designation and Reportable Quantities
The term ``hazardous substance'' is defined in the CWA as those
substances designated pursuant to 33 U.S.C 1321(b)(2), wherein EPA is
authorized to list hazardous substances which, when discharged in any
quantity into jurisdictional waters, present an imminent and
substantial danger to public health or welfare, including, but not
limited to, fish, shellfish, wildlife, shorelines, and beaches (33
U.S.C. 1321(a)(14)).
Once a chemical (i.e., ``element and compound'') is designated as a
CWA hazardous substance, the reportable quantity is established by
regulation under 33 U.S.C. 1321(b)(4). Section 311 of the CWA prohibits
discharges of CWA hazardous substances in quantities that may be
harmful into navigable waters and waters of the contiguous zone, except
where permitted under the Protocol of 1978 relating to the
International Convention for the Prevention of Pollution from Ships,
1973,\3\ and where permitted in quantities and at times and locations
or under such circumstances or conditions as the President may, by
regulation, determine not to be harmful (33 U.S.C 1321(b)(3)).
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\3\ Protocol of 1978 relating to the International Convention
for the prevention of pollution from ships, 1973 (with annexes,
final act and International Convention of 1973). Concluded at London
on 17 February 1978; registered by the International Maritime
Organization on 26 November 1983. https://treaties.un.org/doc/Publication/UNTS/Volume%201340/volume-1340-A-22484-English.pdf.
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C. Regulatory Background
1. EPA CWA Hazardous Substance Actions
EPA designated a list of CWA hazardous substances in 40 CFR part
116 \4\ and subsequently established reportable quantities (RQs) for
those substances in 40 CFR part 117, the discharge of which at or above
the RQ is a violation of CWA section 311(b)(3) and requires notice,
including notice as set forth in 40 CFR 117.21 and the National
Contingency Plan in 40 CFR 300.125(a).\5\ The RQs constitute the
quantities EPA deemed may be harmful and were initially based on a
five-level rating system derived from acute aquatic toxicity and set in
40 CFR 117.3. The most acutely toxic CWA hazardous substances were
classified as Category X and assigned a one-pound RQ, which was
determined based on the smallest container commonly used in
commerce.\6\ Under EPA's scaled system, EPA assigned the other
categories on a proportional basis. If the upper aquatic toxicity limit
of a category is 10 times the upper limit of the preceding, more toxic
category, then the harmful quantity was set as 10 times larger,
excepting category D, at five times larger, and so forth. CWA RQs (in
lbs.) for the five categories are X: 1, A: 10, B: 100, C: 1,000, and D:
5,000.
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\4\ 43 FR 10474, March 13, 1978.
\5\ 44 FR 50766, August 29, 1979.
\6\ 43 FR 10496, March 13, 1978.
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2. EPA Oil Pollution Prevention Regulation
Promulgated under the authority of CWA section 311, the Oil
Pollution Prevention regulation sets forth requirements for the
prevention of, preparedness for, and response to oil discharges at
specific non-transportation-related facilities (see 40 CFR part 112).
The goal of the regulation is to prevent discharges of oil and oil
mixed with hazardous substances from onshore facilities and to contain
such discharges. The regulation requires facilities to develop and
implement Spill Prevention, Control, and Countermeasure (SPCC) Plans
and establishes procedures, methods, and equipment requirements to
prevent oil discharges to navigable waters or adjoining shorelines.
Additionally, subpart D of the Oil Pollution Prevention regulation
requires certain facility owners or operators to prepare and submit a
facility response plan (FRP) for responding to a worst case discharge
of oil. The Oil Pollution Prevention FRP requirements apply to a subset
of SPCC-regulated facilities from which a discharge, or substantial
threat of discharge, may cause substantial harm to the environment.\7\
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\7\ See 40 CFR part 112 Appendix C.
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3. USCG CWA Hazardous Substance Worst Case Discharge Actions
In response to OPA 90, the USCG published rulemaking actions
regarding response plans for CWA hazardous substances. On May 3, 1996,
the USCG published an Advance Notice of Proposed Rulemaking (ANPRM)
addressing vessel and facility response plans (61 FR 20084, May 3,
1996). USCG held two public meetings in 1996 and then developed
proposed regulations and published two separate NPRMs for tank vessels
and MTR facilities in 1999 (64 FR 13734, March 22, 1999) and 2000 (65
FR 17416, March 31, 2000), respectively. On February 17, 2011, USCG
reopened the comment period. In 2019, USCG withdrew their proposed
rulemakings (84 FR 2799 and 84 FR 2800, February 8, 2019) based on
findings of the Chemical Transportation Advisory Committee (CTAC) that
the proposed rules are no longer applicable to the current state of
chemical industry spill response. Specifically for MTR facilities,
``[d]ue to the services and requirements industry frequently engages in
to satisfy insurance requirements and company sustainability polices,
together with the existence of new terminal inspection protocols like
that developed by the Chemical Distribution Institute, CTAC was unable
to identify any significant gaps in hazardous substance spill response
planning at marine transportation-related facilities that would be
reduced by the 2000 proposed rulemaking'' (84 FR 2799-2800).
[[Page 17894]]
Additionally, for vessels, ``CTAC also identified many areas in which
the NPRM may overlap with existing local, state, and international
regulatory schemes as well as current industry practice'' (84 FR 2799).
To date, a USCG regulation has not been finalized.
D. Litigation
On March 21, 2019, the Natural Resources Defense Council, on behalf
of Clean Water Action and the Environmental Justice Health Alliance for
Chemical Policy Reform filed suit in the United States District Court
for the Southern District of New York alleging violations of CWA
311(j)(5)(A)(i) and the Administrative Procedures Act (APA).\8\ The
first claim alleged that EPA's failure to issue ``regulations mandated
by the [CWA] requiring non-transportation-related substantial-harm
facilities to plan, prevent, mitigate and respond to worst case spills
of hazardous substances . . . constitutes a failure to perform a non-
discretionary duty or act in violation of the [CWA].'' The second claim
alleged that, ``EPA's failure to issue these regulations constitute[d]
agency action unlawfully withheld contrary to and in violation of the
[APA] and the [CWA].'' The plaintiffs requested an order from the Court
to compel EPA to promulgate CWA Hazardous Substance Worst Case
Discharge Planning Regulations. Following EPA's Answer, filed on June
4, 2019, the plaintiffs and EPA entered discussions regarding a
potential resolution of the lawsuit.
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\8\ Complaint for Declaratory and Injunctive Relief,
Environmental Justice Health Alliance for Chemical Policy Reform v.
EPA, No. 1-19-cv-02516 (S.D.N.Y., filed March 21, 2019).
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The plaintiffs and EPA entered into a consent decree on March 12,
2020 that resolved the litigation.\9\ The consent decree requires that
within two years (24 months) of entry into the consent decree, or by
March 12, 2022, EPA will sign a notice of proposed rulemaking
pertaining to the issuance of the CWA Hazardous Substance Worst Case
Discharge Planning Regulations for non-transportation-related onshore
facilities. The consent decree further requires EPA to sign a notice
taking final action within an additional two and a half years, or 30
months after publication of the proposal. This proposed action
satisfies EPA's first obligation under the consent decree.
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\9\ Envtl. Justice Health All. for Chem. Reform v. EPA, No.
1:19-cv-02516-VM, Document 32 (S.D.N.Y., filed March 12, 2020).
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E. CWA Hazardous Substance Discharge History and Impacts Analysis
To gain a historic perspective of CWA hazardous substance
discharges to water over time, EPA researched and analyzed multiple
sources of available CWA hazardous substance discharge data. EPA
analyzed National Response Center (NRC) data on CWA hazardous
substances discharges to water. 40 CFR 117.21 requires immediate
notification to the NRC once the person in charge of a vessel or an
offshore or onshore facility has knowledge of a discharge of a CWA
hazardous substance from the facility in quantities equal to or
exceeding its assigned RQ in any 24-hour period. Reporters may not
always be familiar with RQ levels for CWA hazardous substances and
reported quantities released are usually inaccurate or unknown, the NRC
will field and process all reported CWA hazardous substance incidents
and forward the initial information to the Federal On-Scene Coordinator
(OSC) for further investigation. Reports are also made under the NCP
reporting requirement in 40 CFR 300.125. NRC data are generated by
notifications received immediately following a discharge and often lack
complete information on chemicals and quantities discharged, incident
and response details, impacts, and locations. Although the data have
limitations of accuracy, completeness, and over- and under-reporting of
incidents, the NRC database is the most comprehensive database for CWA
hazardous substance discharges. It is important to recognize that these
data reflect the impacts reported upon discovery of an incident (e.g.,
evacuations, injuries, hospitalizations, fatalities, waterway closures,
and water supply contamination), which often result directly from the
event that caused the discharge, rather than the totality of impacts
that could be attributed to the discharge itself. In many cases, it can
take days, weeks, and even months to fully characterize the harm caused
by a discharge. NRC data are not updated to reflect that harm. This
analysis is also hindered by the lack of a robust national database of
the types of CWA hazardous substance discharges that EPA is proposing
to regulate in this action.
1. Discharge History and Reported Impacts
While there are notable instances of high-volume discharges of non-
CWA hazardous substances to water, EPA found limited data on historical
worst cases discharges to water of CWA-regulated hazardous substances
and the NRC has no information related to the origination of the data
cited in this section and Table 3. Between 2010 and 2019, 252,238 total
discharges were reported to the NRC. Of those, 98,306 were non-
transportation-related, of which CWA hazardous substance discharges
comprised 19,657. EPA then identified 2,489 non-transportation-related
CWA hazardous substance discharges which either reached water (1,311)
or it is unknown whether they reached water (1,178). Of the 2,489
discharges in those categories, 131 had reported impacts. Finally, of
those 131, EPA identified 52 discharges of CWA-regulated hazardous
substances that could be linked to non-transportation-related
facilities (i.e., within EPA's regulatory jurisdiction). Given the
generally cursory nature of data provided to the NRC as part of an
emergency notification, the Agency was unable to determine whether any
of the 52 discharges could have been considered worst case discharges
(i.e., the largest foreseeable discharge in adverse weather conditions,
including a discharge resulting from fire or explosion; see Section
IV.A.3.b of this preamble) of CWA hazardous substances based on volume
and impacts.\10\
---------------------------------------------------------------------------
\10\ The NRC database does not identify how many of the 2,489
discharges involving a CWA hazardous substance reached or may have
reached navigable waters. For this analysis, EPA took a conservative
approach and assumed that all discharges impacted navigable water.
---------------------------------------------------------------------------
Over the 10-year period of 2010 to 2019, the average number of CWA
hazardous substance discharges declined from 289 to 219 discharges (a
decrease of 24 percent). EPA has no information as to the cause of this
decline.
2. Most Frequently Discharged CWA Hazardous Substances
A chart of the distribution by CWA hazardous substance of the 2,489
CWA hazardous substance discharges that may have reached water is shown
in Table 3.
Table 3--Distribution of Discharges by CWA Hazardous Substance 2010 to
2019.
------------------------------------------------------------------------
Discharged
CWA Hazardous substance (percent)
------------------------------------------------------------------------
PCBs.................................................... 55
Sulfuric acid........................................... 8
Sodium hydroxide........................................ 6
Ammonia................................................. 5
Benzene................................................. 4
Hydrochloric acid....................................... 4
Chlorine................................................ 4
Sodium hypochlorite..................................... 3
[[Page 17895]]
Other................................................... 12
------------------------------------------------------------------------
Source: NRC.
The majority of discharges (55 percent, or 1,358) comprised
polychlorinated biphenyls (PCBs), typically PCB-containing transformer
leaks or discharges, most often due to vehicles colliding with
transformers (most likely on telephone poles). Fifteen chemicals
accounted for 90 percent of CWA hazardous substance discharge incidents
(by frequency, not by volume), 263 of 362 CWA hazardous substances
(includes alternate names) had no reported discharges, and 80 CWA
hazardous substances had fewer than 10 discharges.
EPA banned PCBs in 1979 and while they are no longer commercially
produced, they are still present in materials and products produced
before the ban. EPA regulates PCBs through the Toxic Substances Control
Act of 1976 (TSCA). Implementation of TSCA includes a PCB cleanup
policy which addresses mitigating the impacts of PCB discharges.
Additionally, most PCBs discharges or threats of discharges are
comingled with oil. Oil of any kind and in any form, including oil
mixtures, are subject to regulation under EPA's Oil Pollution
Prevention regulation. Please see the Technical Background Document
(TBD) for additional information.
3. Impacts to Waterways and Sensitive Environments
In reviewing the identified 131 non-transportation-related CWA
hazardous substance discharges that may have reached water with
reported impacts, EPA determined that 46 involved residences, dumping,
third-party damage to transformers (typically vehicle crashes),
swimming pools, drills or exercises (not actual discharges), vehicles,
incidents that occurred outside of the time period (pre-2010) but were
reported later, duplicates, incidents outside of the United States, or
miscellaneous hydraulic fracturing reports (e.g., odor coming from tap
due to drilling occurring nearby).
Of the remaining 86 discharges, 52 could be linked to non-
transportation-related facilities that are within EPA's regulatory
jurisdiction. Of note:
--Water supply contamination: 50 incidents (six discharges reached
water, 44 discharges where it is unknown if discharges reached water
\11\)
---------------------------------------------------------------------------
\11\ Indicator in NRC database for water contamination provides
options of yes, no, and unknown to have reached water. Forty-four of
these incidents reported `unknown' if reached water. The data are
unclear as to whether any of these incidents reached water and/or
whether they contaminated the water.
---------------------------------------------------------------------------
--Waterway traffic corridor closed: Two incidents (one discharge
reached water, one discharge where it is unknown if the discharge
reached water)
Other impacts,\12\ to the extent to which known, are described in
Table 4. Since the NRC fields and processes initial incident
information, impact information cited in Table 4 is most often unknown.
---------------------------------------------------------------------------
\12\ No fatalities resulted from a CWA hazardous substance
discharge. The only fatality identified was due to a tractor trailer
collision on a bridge where the driver perished, and the vehicle
landed on the toe of a temporary cap on an EPA Superfund site.
Table 4--Other Reported Impacts of CWA Hazardous Substance Discharges From Non-Transportation-Related Facilities
That May Have Reached Water 2010 to 2019
----------------------------------------------------------------------------------------------------------------
Number of
Other reported impacts incidents Number of individuals Notes
----------------------------------------------------------------------------------------------------------------
Evacuations............................. 35 1,115..................... Typically impacts facility
workers.
Shelter-in-place........................ 1 No data available......... Barge offloading toluene
discharged 50 gallons
into the Mississippi
River.
Injuries (without hospitalizations)..... 2 4......................... All reported injuries
appear to be workers
onsite, but NRC data are
not explicit.
Hospitalizations........................ 11 18........................ All reported
hospitalizations appear
to be workers onsite, but
NRC data are not
explicit.
----------------------------------------------------------------------------------------------------------------
4. NRC Data Limitations
The NRC data on which EPA relied for this analysis have numerous
limitations. As described in the subsequent section, EPA has not been
able to identify another dataset which is more complete and/or includes
the types of discharges that would be regulated by this proposed rule,
so despite their limitations, EPA is using the NRC data for this
analysis. There may be impacts (i.e., additional or other than
evacuations, injuries, hospitalizations, fatalities, waterway closures,
and water supply contamination) from the universe of CWA hazardous
substance discharges to jurisdictional water from non-transportation-
related facilities which were not reported to the NRC and, thus, could
not be quantified in this analysis. These may include the loss of
productivity due to a facility or process unit shutting down because of
a discharge, emergency response and restoration costs, transaction
costs such as the cost of resulting litigation, damages to water
quality, fish kills, or impacts to property values due to changes in
perceived risk or reduced ecological services. EPA was not able to
identify data sources to quantify these impacts, other than the cited
data from the NRC. The NRC data are discussed and analyzed further in
the RIA.
5. Data Sources Examined
Since the mission of the NRC is to be the initial point of contact
for all oil and hazardous substances releases and forward that
information to the Federal OSC for response, the initial data collected
does, in most cases, have limitations. Due to this lack of information
on discharges with impacts in the NRC database, EPA examined additional
data sources including:
--National Oceanic and Atmospheric Administration (NOAA) Incident News
--Risk Management Plan (RMP) \13\ rule five-year accident history data
---------------------------------------------------------------------------
\13\ Chemical Accident Prevention Provisions, RMP (40 CFR part
68).
---------------------------------------------------------------------------
--Toxics Release Inventory (TRI) discharge to water data
[[Page 17896]]
--Survey data from previous CWA Hazardous Substance Spill Prevention
rulemaking effort \14\
---------------------------------------------------------------------------
\14\ EPA sent a voluntary survey to states, tribes and U.S.
territories in June 2018 as part of the final Clean Water Act
Hazardous Substances Spill Prevention rulemaking (84 FR 46100;
September 3, 2019) requesting information on the number and type of
EPCRA Tier II facilities reporting CWA hazardous substances onsite,
as well as information about historical discharges of CWA hazardous
substances, ecological and human health impacts of those discharges,
and existing state and tribal regulatory programs that serve to
prevent discharges of hazardous substances (Docket EPA-HQ-OLEM-2017-
0444).
---------------------------------------------------------------------------
--National Toxic Substance Incidents Program (NTSIP)
--Chemical Safety and Hazard Investigation Board Reports
--State discharge reports
EPA did not identify any instances of worst case discharges of CWA
hazardous substances (i.e., the largest foreseeable discharge in
adverse weather conditions, including a discharge resulting from fire
or explosion, see Section IV.A.3.b of this preamble) previously unknown
to the Agency from the above list of data sources. The RIA contains
additional information on these data sources and EPA's research to
identify discharge information sources. EPA requests data on
occurrences of CWA hazardous substance discharges into navigable waters
along with documented impacts.
F. Analysis of Existing Regulatory Programs
To understand the degree to which CWA hazardous substances worst
case discharge planning requirements are regulated under existing
regulations, the Agency reviewed and analyzed the current Federal and
state regulatory framework as well as industry standards for overlap
with and coverage of CWA hazardous substance worst case discharge FRP
provisions required by CWA section 311(j)(5) as detailed in Section III
of this preamble.
EPA's analysis did not find any combination of Federal programs
that comprehensively cover all the CWA section 311(j)(5)(D)
requirements for all CWA hazardous substances. CWA hazardous substance
facilities subject to the Oil Pollution Prevention Program requirements
or RMP rule will have some overlap for the required program elements.
RCRA hazardous waste regulations are comprehensive for CWA hazardous
substances present as waste. State programs do not provide uniform
coverage and are a patchwork, while industry standards are voluntary.
The TBD compares the programs analyzed to the CWA hazardous
substance FRP required program elements and provides a matrix of each
program examined and elements of those programs that have requirements
comparable to those in CWA section 311(j)(5).
EPA analyzed the following EPA requirements:
--America's Water Infrastructure Act of 2018 Amendments to section 1433
of the Safe Drinking Water Act (42 U.S.C. 300i-2)
--Chemical Accident Prevention Provisions, RMP (40 CFR part 68)
--Emergency Planning and Community Right-to-Know Act:
--Emergency Planning Notification and Emergency Release
Notification (40 CFR part 355)
--Hazardous Chemical Reporting: Community Right-to-Know (40 CFR
part 370)
--Toxic Chemical Release Reporting: Community Right-to-Know (40 CFR
part 372)
--National Pollutant Discharge Elimination System (NPDES) Regulations
--NPDES (40 CFR part 122)
--General Pretreatment Regulations for Existing and New Sources of
Pollution (40--CFR part 403)
--Oil Pollution Prevention Regulations
--Subpart A, Applicability, Definitions, and General Requirements
for All Facilities and All Types of Oils, SPCC (40 CFR part 112)
--Subpart D, Response Requirements, FRP (40 CFR 112.20 and 112.21)
--Pesticide Regulations
--Pesticide Management and Disposal (40 CFR part 165)
--Pesticide Agricultural Worker Protection Standard (40 CFR part
170)
--Resource Conservation and Recovery Act (RCRA) Regulations
--Criteria for Classification of Solid Waste Disposal Facilities
and Practices Subpart D, Standards for the Disposal of Coal Combustion
Residuals in Landfills and Surface Impoundments (40 CFR part 257)
--Standards Applicable to Generators of Hazardous Wastes (40 CFR
part 262)
--Standards for Owners and Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities (TSDF) (40 CFR parts 264 & 265)
--Technical Standards and Corrective Action Requirements for Owners
and Operators of Underground Storage Tanks (UST) (40 CFR part 280)
--TSCA: PCBs Manufacturing, Processing, Distribution in Commerce, and
Use Prohibitions (40 CFR part 761)
EPA also analyzed the following non-EPA Federal requirements:
--Mine Safety and Health Administration (MSHA) Subchapter H--Education
and Training, Subchapter I--Accidents, Injuries, Illnesses, Employment,
and Production in Mines (30 CFR parts 46-50)
--Occupational Safety and Health Administration Regulations:
--Hazard Communication Standard (HazCom) (29 CFR 1910.1200)
--Hazardous Waste Operations and Emergency Response (HAZWOPER) (29
CFR 1910.120)
--Process Safety Management of Highly Hazardous Chemicals (29 CFR
1910.119)
--Emergency Action Plan (29 CFR 1910.38)
--Pipeline and Hazardous Materials Safety Administration (PHMSA)
Hazardous Materials Regulations (49 CFR parts 171-179)
--Surface Mining Control and Reclamation Act (SMCRA) Mineral Resources,
Office of Surface Mining Reclamation and Enforcement, Department of the
Interior (30 CFR parts 700-999)
--United States Department of Homeland Security (DHS) Chemical Facility
Anti-Terrorism Standards (CFATS) (6 CFR part 27)
EPA also analyzed the existing state regulatory framework for CWA
hazardous substance FRPs for all 50 states and found 27 programs with
elements potentially comparable to those required by CWA section
311(j)(5), available in the TBD. EPA found state coverage is an
inconsistent patchwork and cannot be relied upon for uniform,
nationwide CWA hazardous substance FRP requirements.
Additionally, EPA analyzed existing industry standards related to
CWA hazardous substance FRPs for four standards with elements
potentially comparable to those required by CWA section 311(j)(5).
However, these standards are voluntary and do not provide comprehensive
coverage of proposed CWA hazardous substance FRP program elements.
Again, the TBD contains a more detailed discussion of each proposed
program element and regulation, program, or standard. EPA solicits
comment on this analysis as well as on other programs or standards EPA
should examine.
IV. Proposed Action
EPA is proposing a regulatory program whereby those facilities that
[[Page 17897]]
could reasonably be expected to cause substantial harm to the
environment, based on their location, are required to prepare and
submit CWA hazardous substance FRPs for worst case discharges to the
EPA. EPA will approve only those CWA hazardous substance FRPs submitted
for facilities that could cause significant and substantial harm to the
environment. EPA proposes that FRPs must be consistent with the NCP and
ACPs; identify the qualified individual having full authority to
implement response actions and require immediate communications between
that individual and the appropriate Federal official and the persons
providing personnel and equipment, with a description of duties;
identify, and ensure by contract or other approved means, the
availability of private personnel and equipment necessary to respond to
the maximum extent practicable to a worst case discharge of CWA
hazardous substances (including a discharge resulting from fire or
explosion), and to mitigate or prevent a substantial threat of such a
discharge; describe the training, equipment testing, periodic
unannounced drills, and response actions of persons at the facility;
and review and update facility response plan periodically and resubmit
to the RA for approval of each significant change. Specific CWA
hazardous substance FRP components will include: facility information,
owner or operator information, hazard evaluation, reportable discharge
history, response personnel and equipment, evidence of contracts or
other approved means to ensure the availability of personnel and
equipment, notification lists, discharge information, personnel roles
and responsibilities, response equipment information, evacuation plans,
discharge detection systems, response actions, disposal plans,
containment measures, training and exercise procedures, self-
inspection, a coordination activities. Please see section IV.B of this
preamble for specific discussion of each of these components.
To identify potential elements to include in this proposal, EPA
reviewed existing regulations that include emergency response planning
provisions as well as the USCG regulatory proposals to establish
requirements for CWA hazardous substance worst case discharges.
Specifically, EPA considered existing requirements for Oil Pollution
Prevention FRPs under 40 CFR part 112 (or oil FRPs) given that these
requirements have been in place since 1994 and were promulgated under
the same statutory authority as this proposal. Of note, CWA hazardous
substances vary widely in physical and chemical properties when
compared to oils; EPA has closely considered these variations in this
proposal. Additionally, EPA examined requirements under the RMP rule
under 40 CFR part 68, which implements section 112(r)(7) of the Clean
Air Act and requires facilities that use regulated substances to
develop an RMP.
A. Applicability Criteria
The statute governing CWA hazardous substances worst case
discharges specifies that those facilities that could reasonably be
expected to cause substantial harm to the environment, based on their
location, are required to prepare and submit CWA hazardous substance
FRPs for worst case discharges to the EPA. EPA will approve or
disapprove only those CWA hazardous substance FRPs submitted for
``significant and substantial harm facilities.''
EPA is proposing in Sec. 118.3 two initial screening criteria to
determine whether a facility, because of its location, could cause
substantial harm to the environment from a worst case discharge into or
onto navigable water. The first step in assessing applicability is to
determine whether a facility has the container capacity for a CWA
hazardous substance onsite at or above a threshold quantity. If so, the
facility owner or operator then determines whether the facility is
within one-half mile to navigable water or a conveyance to navigable
water. EPA solicits comment on alternative or additional screening
criteria with supporting rationale and data. If those two conditions
are satisfied, the owner or operator determines whether the facility
meets any of the four substantial harm criteria: The ability to
adversely impact a public water system; the ability to cause injury to
fish, wildlife, and sensitive environments (FWSE); the ability to cause
injury to public receptors; and/or having had a reportable discharge of
a CWA hazardous substance within the last five years. If any of those
substantial harm criteria are met, then the owner or operator must
submit a CWA hazardous substance FRP to EPA. Additionally, EPA is
proposing in Sec. 118.5(a) that an EPA Regional Administrator has the
authority to require CWA hazardous substance FRPs, after consideration
of site-specific factors for a facility, regardless of whether a
facility meets the criteria in proposed Sec. 118.3. To determine
whether a facility could reasonably be expected to cause substantial
harm following a CWA hazardous substance worst case discharge, EPA is
proposing factors for the RA to evaluate in Sec. 118.5(b). Please see
further discussion of Regional Administrator authorities to require CWA
hazardous substance FRPs and determination of significant and
significant and substantial harm in A.2.f of this section.
Proposed applicability criteria include:
Threshold Quantity: To account for the 296 different CWA hazardous
substances with various properties, EPA is proposing to apply a maximum
capacity onsite criterion threshold quantity for each CWA hazardous
substance by using a multiplier of the CWA RQ, based on the RQ
categories specified in 40 CFR part 117.
Facility location: EPA is proposing to use facility location
relative to navigable waters as an applicability screening criterion
for CWA hazardous substance FRP facilities. Specifically, facilities
meeting or exceeding the CWA hazardous substance maximum capacity
onsite threshold quantity and located within one-half mile of a
navigable water or a conveyance to a navigable water must determine if
the facility meets at least one substantial harm criterion.
Ability to cause injury to fish, wildlife, and sensitive
environments (FWSE): EPA proposes a substantial harm criterion for
facilities located at a distance such that a CWA hazardous substance
discharge has the potential to cause injury to FWSE. EPA proposes to
codify parameters and toxic endpoints to be used by facility owners
when determining whether a worst case CWA hazardous substance discharge
could cause injury to FWSE.
Ability to adversely impact a public water system: EPA is proposing
to require facility owners or operators to coordinate with nearby
public water systems to determine whether a CWA hazardous substance
worst case discharge could adversely impact a public water system.
Ability to cause injury to public receptors: EPA is proposing a
substantial harm criterion for facilities located at a distance such
that a CWA hazardous substance discharge could cause injury to public
receptors. EPA proposes a definition for public receptors as those
areas where the public could be exposed to a CWA hazardous substance
worst case discharge to navigable waters. EPA further proposes that the
same parameter and toxic endpoints used for the FWSE substantial harm
criterion
[[Page 17898]]
apply for determining injury to public receptors.
Reportable discharge history: EPA is proposing a substantial harm
criterion that identifies whether the facility has had a reportable CWA
hazardous substance discharge to water within the last five years. A
reportable discharge is defined in 40 CFR 117.21 as any discharge in
quantities equal to, or exceeding, in any 24-hour period, the
reportable quantity in 40 CFR 117.3, the discharge of which violates
CWA section 311(b)(3).
[GRAPHIC] [TIFF OMITTED] TP28MR22.242
EPA is proposing a definition of ``facility'' in Sec. 118.2 that
is adopted from the Oil Pollution Prevention regulation at 40 CFR
112.2.\15\ This definition is broad and captures the types of
facilities intended to be regulated by EPA under CWA hazardous
substance worst case discharge regulations. The Agency recognizes that
under this definition, the owner or operator has the discretion to
determine what constitutes a facility. That is, the proposed rule may
become applicable to a facility in cases of aggregation of buildings,
structures, or equipment and associated storage or type of activity, or
the division of the facility may end applicability due to separation of
buildings, structures, or equipment and associated CWA hazardous
substance storage or type of activity. However, an owner or operator
may not make facility determinations indiscriminately and in such a
manner as to simply avoid applicability of the proposed rule (for
example, the division of one facility into separate facilities with one
CWA hazardous substance container located at each facility where all
containers are located side-by-side or in close proximity to each other
and are used for the same purpose). EPA solicits comment on this
definition and any appropriate adjustments with supporting rationale
and data.
---------------------------------------------------------------------------
\15\ See EPA's ``SPCC Guidance for Regional Inspectors'' https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/spcc-guidance-regional-inspectors.
---------------------------------------------------------------------------
1. Screening Criteria
a. CWA Hazardous Substance Capacity Threshold Quantity
i. 10,000x CWA Hazardous Substance RQ Multiplier
In Sec. 118.3, EPA is proposing that if the maximum capacity
onsite, as defined in Sec. 118.2 (the total aggregate container
capacity for each CWA hazardous substance present at all locations
within the entire facility at any one time) at the facility of any CWA
hazardous substance, at any one time, meets or exceeds 10,000 times its
RQ, the facility has met the threshold quantity. If a facility's
container capacity meets or exceeds the threshold quantity for any one
CWA hazardous substance and the facility is within one-half mile of
navigable waters, then the facility owner or operator must determine if
the facility meets at least one substantial harm criterion proposed in
this action. If so, the entire facility would be subject to the CWA
hazardous substance FRP requirements proposed in this action for all
CWA hazardous substances stored or used at the facility.
EPA chose to use a multiplier of the CWA hazardous substance RQ as
the threshold quantity because RQs represent a quantity that may be
harmful when discharged to navigable waters. For a facility to cause
substantial harm to the environment, it would need to reasonably be
expected to cause a discharge in a quantity larger than the RQ and
would therefore need to have the capacity to store significantly larger
quantities onsite.
RQs exist for all CWA hazardous substances and reflect relative (in
relation to other CWA hazardous substances, due to the five categories
detailed below, see Table 5) and aquatic
[[Page 17899]]
toxicity.\16\ In accordance with 40 CFR 117.21, CWA hazardous substance
discharges to navigable waters or adjoining shorelines require
notification to the NRC when the CWA hazardous substance discharge is
equal to, or exceeds, in any 24-hour period, the RQ in 40 CFR 117.3.
---------------------------------------------------------------------------
\16\ These values were later adopted by Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA).
---------------------------------------------------------------------------
The RQs were originally developed in 1979 and adjusted beginning
with an evaluation of the intrinsic physical, chemical, and
toxicological properties of each CWA hazardous substance. The intrinsic
properties examined, also called the ``primary criteria,'' were aquatic
toxicity, mammalian toxicity (oral, dermal, and inhalation),
ignitability, reactivity, chronic toxicity, and potential
carcinogenicity.\17\ Generally, for each intrinsic property, EPA ranked
CWA hazardous substances on a scale, associating a specific range of
values on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000
lbs. EPA evaluated the data for each CWA hazardous substance using
various primary criteria; each CWA hazardous substance may have
received several tentative RQ values based on its particular intrinsic
properties. The lowest of the tentative RQs became the ``primary
criteria RQ'' for that substance, which EPA used to assign an initial
category of X, A, B, C, or D. After EPA assigned the primary criteria
RQ, EPA further evaluated substances for their susceptibility to
certain degradative processes, which were used as secondary adjustment
criteria. These natural degradative processes were biodegradation,
hydrolysis, and photolysis (BHP). If a CWA hazardous substance, when
discharged into the environment, degrades relatively rapidly to a less
hazardous form by one or more of the BHP processes, its RQ (as
determined by the primary RQ adjustment criteria), was generally
adjusted down one level (e.g., from Category A to Category B).
Conversely, if a CWA hazardous substance degrades to a more hazardous
product after its discharge, the original substance was assigned an RQ
equal to the RQ for the more hazardous substance, which may have been
one or more levels higher than the RQ for the original substance (e.g.,
from Category C to Category A). This approach in developing RQs may not
reflect the ignitability or reactivity of single substances or among
multiple substances that may comingle, or the potential for the
additive or synergistic effects in the toxicity of two or more CWA
hazardous substances.
---------------------------------------------------------------------------
\17\ In 1979, EPA established RQs at 40 CFR 117 (44 FR 50766,
August 29, 1979), which used the acute aquatic toxicity of the CWA
hazardous substances to determine RQs. For a detailed discussion of
this methodology, see 43 FR 10489-92 (March 13, 1978) and 40 FR
59982-89 (December 30, 1975). In 1985, EPA amended 40 CFR part 117
to make reportable quantities adjusted under CERCLA the applicable
reportable quantities for hazardous substances pursuant to CWA
section 311 (50 FR 13456, April 4, 1985). In this action, EPA
established a methodology for adjusting RQs, which established
``primary criteria'' as aquatic toxicity, mammalian toxicity (oral,
dermal, and inhalation), ignitability, reactivity, and chronic
toxicity. EPA subsequently established a methodology for including
potential carcinogenicity as a ``primary criterion'' (see, for
example, 54 FR 33418, August 14, 1989 and 54 FR 33426, August 14,
1989).
Table 5--CWA Hazardous Substance Categories and Reportable Quantities
------------------------------------------------------------------------
Reportable quantity
Category (lbs)
------------------------------------------------------------------------
X.................................................. 1
A.................................................. 10
B.................................................. 100
C.................................................. 1,000
D.................................................. 5,000
------------------------------------------------------------------------
Using the RQ as a basis to characterize a facility that has the
ability to cause substantial harm in the event of a worst case
discharge has the advantage of building a regulatory structure using
existing quantifiable values that have previously been vetted through
the rulemaking process. The public, industry, and EPA are familiar with
these concepts. Additionally, RQs reflect varying levels of and
relative risk, based on the methodology outlined above, so
applicability criteria under the proposed rule are scaled to the
specific circumstances of each facility, rather than applying a one-
size-fits-all approach. However, the properties of listed CWA hazardous
substances may not be fully captured in the RQs because the existing
RQs may not be based on the most current risk data.
This rulemaking is explicitly focused on response planning for
worst case CWA hazardous substances discharges to navigable waters. EPA
recognizes that multiple factors contribute to the likelihood of a CWA
hazardous substance worst case discharge to navigable waters, including
but not limited to, physical and chemical properties of the CWA
hazardous substance, quantity stored onsite, size of storage
containers, cause of the discharge, proximity to navigable waters or
conveyances, properties of the terrain, drainage pathways, weather,
etc. EPA expects that excessively low threshold quantities would likely
be overly cautious and regulate facilities that are not likely to cause
substantial harm to the environment. Establishing a lower threshold
planning quantity for all CWA hazardous substances could potentially
overwhelm local and facility emergency planning efforts and would not
be commensurate with the danger posed by individual substances.
The 10,000x RQ multiplier assumes that larger capacities of CWA
hazardous substances generally correspond to an increased risk of
adverse impacts to receptors should a worst case discharge occur. As
discussed in Section III of this preamble, the RQs are quantities that
``may be harmful,'' thus, by definition, they do not represent a worst
case discharge quantity. Additionally, as discussed in Section
IV(A)(2)(d) of this preamble, the definition of ``size classes of
releases'' in 40 CFR 300.5, which corresponds with hazardous substance
releases under the NCP, is not tied to a particular quantity; rather, a
major release is a ``release of any quantity of hazardous substance(s),
pollutant(s), or contaminants(s) that poses a substantial threat to
public health or welfare of the United States or the environment or
results in significant public concern.'' Under the NCP, the On-Scene
Coordinator (OSC) makes the final determination of the appropriate
classification of a hazardous substance release based on consideration
of the particular release (e.g., size, location, impact, etc.). EPA
concludes that to focus on the threat of these major releases, in terms
of applicability, adjusting the RQ upward is warranted.
EPA recognizes that the multiplier proposed here does not represent
a ``safe'' quantity in the event of a CWA hazardous substance
discharge. However, EPA determined the 10,000x RQ multiplier reflects
the range of risks posed by the listed CWA hazardous substances,
whether they are used at large or small facilities, by preserving the
underlying toxicity parameters used to establish the original RQs. EPA
notes, however, owners and operators are responsible for remaining
cognizant of the maximum capacity(ies) onsite of all CWA hazardous
substances at any one time and determining whether the maximum capacity
onsite is at or exceeds 10,000x the RQ found at 40 CFR 117.3.
The proposed rule requires detailed planning requirements for
responding to worst case discharges. These requirements should be
triggered only when maximum capacities onsite of CWA hazardous
substances are large enough to pose a risk of substantial harm to
public health or the environment. While EPA recognizes that site-
specific factors, such as site elevations and location and nature of
[[Page 17900]]
the discharge point, could affect the likelihood or effects of a
discharge, EPA does not believe it is feasible to develop a methodology
for establishing threshold quantities based on site-specific factors
that would be applicable uniformly nationwide for every CWA hazardous
substance. This is consistent with EPA's original approach in setting
the RQs and reflected in the regulatory history and language.\18\ EPA
examined other threshold multipliers, available in the RIA, including
10x, 100x, and 1,000x multipliers; however, these multipliers would not
focus the proposed emergency planning requirements on those facilities
with the greatest potential to cause substantial harm to human health
or the environment. EPA solicits comment on using a 10,000x multiplier
of the RQs for the screening criteria with supporting rationale and
data. EPA also solicits comment on the use of alternative RQ multiplier
values, as well as different multipliers for each category of CWA
hazardous substance, in addition to any supporting data or studies on
this topic.
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\18\ See Footnote 17.
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I. Alternative Applicability Approaches
Establish New Regulatory Thresholds Based on Toxic Endpoints
EPA also considered developing applicability thresholds using
representative receptors for each of the three categories of receptors
considered under this proposed rule (FWSE, public receptors, and public
water systems) in order meet the specific objectives of this rule.
Under this approach, EPA would set new threshold quantities for
each CWA hazardous substance using the most current risk data. Each CWA
hazardous substance would be evaluated to determine (1) how a discharge
could cause substantial harm to each type of receptor, and (2) the
concentration at which substantial harm would be likely to occur for
each type of receptor. The lowest concentration that could cause
substantial harm to any receptor would serve as the basis for
establishing a single applicability threshold for each CWA hazardous
substance. A standard conservative dilution factor would be used to
relate the substantial harm concentration to a quantity of the CWA
hazardous substance onsite at a facility that would then serve as the
applicability threshold for that CWA hazardous substance.
While this approach could effectively target facilities based on
their effects on the receptors of interest, there are significant
drawbacks to this strategy. Development of new CWA hazardous substance-
specific worst case discharge thresholds would unduly delay
implementation of this protective regulation, and there would be data
gaps. Additionally, simplifying assumptions would be necessary to
develop a dilution factor used to convert a concentration at a
downstream receptor to a mass stored at a facility. EPA solicits
comment on establishing new regulatory thresholds for CWA hazardous
substance FRP applicability using the most current risk data and
appropriate endpoints, including the methodology, data, and rationale;
appropriate dilution factors; and feasibility of implementation.
Establish Thresholds Using Distance-Based Multipliers
EPA considered establishing applicability thresholds using
distance-based multipliers for CWA hazardous substance RQs. This
approach recognizes that the potential for a CWA hazardous substance
worst case discharge from a facility to cause substantial harm to a
downstream receptor (i.e., public water system, FWSE, or public
receptor) depends on the distance and travel time from the facility to
a downstream receptor over land and water, among other factors (e.g.,
river width, gage height, flow velocity, land transport considerations,
lateral dispersion and/or diffusion). As distance increases, the
contaminant concentration at the receptor decreases, while the time
available to respond to the discharge increases; thus, the further a
facility is from a receptor, the lower the potential for substantial
harm, all other factors being equal. By applying a multiplier to the RQ
based on the distance from the facility to the nearest downstream
receptor, the regulation could better target facilities that are more
likely to cause substantial harm in the event of a worst case
discharge.
Under this approach, an owner or operator would be required to
calculate a planning distance to the nearest downstream receptor if the
following two conditions are met: The facility has more than 10x the RQ
of the CWA hazardous substance onsite and the facility is within one-
half mile of navigable water or a conveyance leading to navigable
water. The planning distance to the nearest downstream receptor is then
used to establish the distance-based applicability threshold using the
simple equation: RQ x distance x 100, where distance is the planning
distance, in miles, between the facility and the nearest downstream
receptor. The planning distance includes travel overland and in water.
For a release of the same amount, the concentration at a receptor is
inversely proportional to the distance from the point of release to the
receptor. Thus, inclusion of a ``distance factor'' in the equation to
establish an applicability threshold will appropriately establish a
lower threshold for facilities that are closer to downstream receptors,
and thus present a greater risk.
Facilities with onsite quantities greater than this distance-based
threshold would then be required to conduct an analysis to determine
whether the facility has the potential to cause substantial harm in the
event of a worst case discharge. Only if the analysis determines that
the facility has the potential to cause substantial harm in the event
of a worst case discharge would the facility be required to develop a
CWA hazardous substance FRP.
EPA recognizes that use of planning distance in the applicability
determination may better target facilities with the potential to cause
substantial harm without unnecessarily increasing the size of the
regulated universe, because facilities located further upstream from a
receptor would have a proportionately higher applicability threshold.
This approach would be more complicated for the regulated community to
implement, relative to the use of a single threshold multiplier (e.g.,
10,000), and for EPA to evaluate and enforce. EPA solicits comment on
this approach, as well as any supporting data, information pertaining
to additional costs, considerations for appropriate multipliers to use,
and underlying methodology, data, and rationale.
Thresholds From Other Hazardous Substances Regulations (Non-CWA)
EPA reviewed other hazardous substance regulations for potential
consideration of applicability thresholds, including:
--Chemical Accident Prevention Provisions, RMP List of Substances (40
CFR 68.130)
--EPCRA Section 302: Threshold Planning Quantities for Emergency
Planning (40 CFR part 355, Appendices A and B)
--EPCRA Section 304: Reportable Quantities for Emergency Release
Notification (40 CFR part 355, Appendices A and B)
--EPCRA Sections 311 and 312: Reporting Thresholds for Hazardous
Chemical Reporting: Community Right to Know (40 CFR 370.10)
--EPCRA Section 313: Toxic Chemical Release Reporting (40 CFR 372.65)
[[Page 17901]]
These are detailed in the TBD. EPA concluded that the methodologies
used to create the reporting thresholds under these regulations are not
appropriate for CWA hazardous substance response planning.
Additionally, EPA found that only EPCRA Sections 311 and 312 include
all substances on the 40 CFR part 116 list of CWA hazardous substances.
However, the applicability for EPCRA sections 311 and 312 regulations
is if any OSHA hazardous chemical is present at the facility at or
above the reporting thresholds at any one time. EPA solicits comment on
any other chemical threshold approaches from Federal or state
regulations, industry standards, etc. that EPA should consider,
including data and rationale.
II. Alternative Thresholds by Aggregated Category
EPA considered options involving aggregating chemical capacity by
RQ category or by removability or recoverability in the event of a
discharge. To aggregate by RQ category to determine whether a facility
meets the threshold quantity for the maximum capacity onsite proposed
in Sec. 118.3(a), a facility could be required to add up the
capacities of CWA hazardous substance containers present onsite by
category. If, in aggregate, the capacity of those containers in each
category reaches the threshold quantity, the owner or operator would be
required to determine whether the facility is within one-half mile of
navigable water and then whether the facility meets any of the
substantial harm criteria.
EPA decided this approach is inappropriate due to the wide
variability of physicochemical properties for CWA hazardous substances
within each category. Additionally, under this approach, facilities
with small amounts of multiple chemicals in each category may be
required to do facility response planning for improbable events
impacting multiple small containers, or other containers where the
likelihood of concurrent catastrophic discharge is very low. Finally,
this approach would require EPA to select a capacity threshold for each
category above which facilities would be regulated. EPA found no basis
for selecting a threshold for aggregate capacity for each category.
EPA solicits comment on the approach to aggregate CWA hazardous
substances within categories to determine whether a facility has
reached the threshold quantity for applicability, as well as
alternative approaches to aggregating quantities of different CWA
hazardous substances with supporting rationale and data.
In terms of categorizing CWA hazardous substances by removability
and recoverability for response resource planning, EPA previously
proposed and revoked rules that could guide that discussion. On March
13, 1978, EPA issued 40 CFR part 117 to determine the removability of
each CWA hazardous substance and 40 CFR part 119, which determined
units of measurement and penalties (43 FR 10488 and 43 FR 10495). On
November 2, 1978, section 311 of the CWA was amended by Public Law 95-
576. The amended statute no longer required the Agency to make
determinations of removability or units of measurement for computing
penalties. Therefore, 40 CFR parts 117 and 119 of the March 13, 1978
regulations were revoked on February 16, 1979 (44 FR 10269). The basis
for determining reportable quantities, formerly termed ``harmful
quantities,'' was simplified by the amendment and, thus, part 118 of
the March 13, 1978 regulations was also revoked and reportable
quantities were reproposed as a new part 117 on February 16, 1979 (44
FR 10271) as ``quantities that may be harmful.''
In 40 CFR part 117: Determination of Removability of Hazardous
Substances (43 FR 10488) (since revoked), EPA discussed designating
certain substances as those that can actually be removed under most
conditions of discharge. These substances have limited water
solubility, a relatively cohesive mass, and are less dense than water.
Thus, they resemble petroleum oils in their behavior when discharged to
water. The substances can be described as those with specific gravities
less than 1.0 and water solubility less than 1,000 mg/l. Accordingly,
the revoked final rule made the determination that allyl acetate,
ethylbenzene, xylene, allyl chloride, benzene, cyclohexane, isoprene,
methyl methacrylate, styrene, and toluene could actually be removed and
identified them as oil-like CWA hazardous substances.
Additionally, under 40 CFR part 119: Units of Measurement & Rates
of Penalty (43 FR 10495) (now revoked), EPA discussed applying an
adjustment factor to penalties (0.1 to 1.0) using a profiling operation
based on the solubility, density, volatility, and associated propensity
for dispersal in water of each CWA hazardous substance. Each CWA
hazardous substance was placed in one of eight categories combining
these physical, chemical, and dispersal properties in various ways. EPA
then ranked the relative harm these categories posed to the
environment. Table 6 shows the terms involved; final relative ranking
of physical, chemical, and dispersal categories in increasing order of
relative damage potential; and physical, chemical, and dispersal factor
of each category.
Table 6--Material Classification and Relative Harm
----------------------------------------------------------------------------------------------------------------
Physical/
Material classification Physical/ chemical/ dispersal Rank chemical/
category dispersal
----------------------------------------------------------------------------------------------------------------
Insoluble Volatile Floater................... IVF.............................. 1 0.10
Insoluble Nonvolatile Floater................ INF.............................. 2 0.23
Insoluble Sinker............................. IS............................... 3 0.36
Soluble Mixer................................ SM............................... 4 0.49
Precipitator................................. P................................ 5 0.62
Soluble Sinker............................... SS............................... 6 0.75
Soluble Floater.............................. SF............................... 7 0.88
Miscible..................................... M................................ 8 1.0
----------------------------------------------------------------------------------------------------------------
The eight categories were defined as:
1. IVF (insoluble volatile floater): Materials lighter than water
with a vapor pressure greater than 10 mm Hg and a solubility of less
than 1,000 ppm (weight per weight basis) or materials with vapor
pressure greater than 100 mm Hg and solubility less than 10,000 ppm.
[[Page 17902]]
2. INF (insoluble nonvolatile floater): Materials lighter than
water with a vapor pressure greater than 10 mm Hg and a solubility of
less than 1,000 ppm (weight per weight basis).
3. IS (insoluble sinker): Materials heavier than water and with a
solubility less than 1,000 ppm (weight per weight basis).
4. SM (soluble mixer): Solid substances with a solubility greater
than 1,000 grams of solute per 1,000 grams of water.
5. P (precipitator): Salts which dissociate or hydrolyze in water
with subsequent precipitation of a toxic ion.
6. SS (soluble sinker): Materials heavier than water and a
solubility greater than 1,000 ppm (weight per weight basis).
7. SF (soluble floater): Materials lighter than water and a
solubility greater than 1,000 ppm (weight per weight basis).
8. M (miscible): Liquid substances which can freely mix with water
in any proportion.
EPA considered, but decided against, using these revoked categories
for a listed hazardous substance's ability to be removed under most
conditions of discharge to aggregate hazardous substances for
establishing an applicability threshold quantity. EPA judged that
aggregating in this fashion is impractical; may not adequately reflect
risks, including inherent, CWA hazardous substance-specific toxic,
explosive, ignitable and/or reactive natures, especially during an
extreme event; and implementation and compliance would be complicated.
Additionally, as these regulations were revoked, industry is unfamiliar
with this approach and facility planners do not use these categories in
their planning. EPA solicits comment on aggregating CWA hazardous
substances, as detailed above, with supporting rationale and data.
Additionally, in the USCG proposed rules for tank vessels and MTR
facilities (64 FR 13734, March 22, 1999 and 65 FR 17416, March 31,
2000), some CWA hazardous substances were defined as ``sinkers'' and
``floaters'', where ``sinkers'' are those CWA hazardous substances
whose physical and chemical properties, following a discharge into
water, result in a substance in the water that does not float, react
chemically with water, rapidly vaporize, or rapidly dissolve. Under
ambient conditions, these chemicals have a solubility of less than 0.01
percent, specific gravity greater than 1.0, and a vapor pressure less
than 1 PSIG. ``Floaters'' are those CWA hazardous substances whose
physical and chemical properties, following a discharge into water,
result in a substance on the water surface that does not rapidly sink,
react chemically with water, vaporize, or dissolve. Under ambient
conditions, these CWA hazardous substances have a solubility of less
than 0.01 percent, a specific gravity less than 1.0, and a vapor
pressure less than 1 PSIG. Neither a ``sinker'' or ``floater''
designation was intended to include CWA hazardous substances that are
highly reactive in water or volatile, and therefore could not be
reasonably contained or collected under any conditions.
Categorizing chemicals in this fashion is more intuitive than the
EPA-revoked eight categories in Table 6 above. Additionally, ``sinker''
and ``floater'' would specifically link to response requirements, the
main focus of this action. However, again due to the wide variability
in chemical properties and requirements around responding to a worst
case discharge, EPA determined that categorizing and aggregating
chemicals generally is not appropriate for this action for the reasons
specified above for aggregating by the revoked categories.
EPA solicits comment on using ``sinkers'' and ``floaters'' as
chemical categories to require specific response planning resources be
available or contracted, or in aggregating chemicals for threshold
determinations with supporting rationale and data.
ii. Maximum Capacity Onsite v. Maximum Quantity Onsite
EPA is proposing in Sec. 118.2 to define maximum capacity onsite
as the total aggregate container capacity of each CWA hazardous
substance present at all locations within the entire facility at any
given time, similar to the approach taken in the Oil Pollution
Prevention regulation (see 40 CFR part 112). EPA is proposing a
definition for permanently closed containers in Sec. 118.2 such that
facilities would not need to count these containers in their CWA
hazardous substance maximum capacity onsite threshold quantity
calculations.
EPA recognizes that for the chemical industry, chemical inventory
quantities routinely fluctuate, and facilities use a wide variety of
containers to store CWA hazardous substances; common containers include
storage tanks, process vessels, railcars, and other onsite shipping
containers not in transportation. Thus, regulating facilities based on
the maximum container capacity onsite will allow regulated stakeholders
an opportunity to plan for the worst case quantities of CWA hazardous
substances at the facility. This approach also allows emergency
response planners to reflect the risk posed by CWA hazardous substances
onsite in those maximum possible quantities. This is a simpler approach
for inspectors to determine facility applicability based on container
sizes instead of reviewing and aligning quantities in fluctuating
inventories. Furthermore, calculating applicability using container
shell capacity could be viewed as a more conservative approach to
determine whether a facility has reached the threshold quantity of CWA
hazardous substances.
There are some limitations to this approach. Chemical mixtures
would be complex to regulate, and the approach does not allow for
flexibility. Oils are fundamentally different from CWA hazardous
substances in that when an oil is mixed with another substance, the
entire mixture is subject to regulation under CWA section 311 and the
Oil Pollution Prevention regulation. Therefore, when determining
applicability for oils, the shell capacity of the container can be
taken into account because the entire mixture in the container is
considered an oil for regulatory purposes. However, CWA hazardous
substances may be combined into mixtures and therefore it is necessary
to understand the quantities of each substance in the mixture to
determine total quantities onsite when determining applicability.
Furthermore, EPA understands that CWA hazardous substance facility
quantities and batch process operations often vary and therefore EPA
inspectors would still need to consider facility inventories to
understand facility storage capacities. Additionally, this approach is
not consistent with how industry manages their chemicals under similar
chemical preparedness and reporting regulations. The typical amount of
CWA hazardous substances at a facility may be less than the total
capacity because facilities are overdesigned to meet seasonal demands
or changing facility need. Finally, containers may be designed to never
actually hold the maximum quantity possible due to the need for
freeboard or headspace, thus using the maximum capacity onsite may not
be a realistic accounting of CWA hazardous substance quantities for
planning purposes.
EPA considered proposing that the maximum quantity stored onsite
means the total amount of a CWA hazardous substance present at all
locations within the entire facility at any given time (e.g., storage
tanks, process vessels, onsite shipping containers) and that this
amount be used to determine whether a facility meets or exceeds the
threshold
[[Page 17903]]
quantity proposed in Sec. 118.3(a). This is consistent with other EPA
chemical accident preparedness and reporting programs, for example
EPCRA Sections 311 and 312.\19\ A facility owner or operator would use
the maximum total aggregate amount of a CWA hazardous substance in all
containers onsite at any one time to calculate this quantity. Once a
facility becomes subject to the regulation for one CWA hazardous
substance, the facility would include all CWA hazardous substances on
site in their planning activities.
---------------------------------------------------------------------------
\19\ See 40 CFR part 370.
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EPA solicits comment on the proposed approach, the definition of
permanently closed containers, using maximum quantity onsite rather
than maximum capacity onsite for applicability threshold quantity
calculations, the number of facilities that may be regulated under the
proposed approach versus using maximum quantity onsite, and potential
alternative approaches with supporting rationale and data.
iii. Accounting for Mixtures
When designating CWA hazardous substances, EPA defined mixture in
40 CFR 116.3 to mean any combination of two or more elements and/or
compounds in solid, liquid, or gaseous form except where such
substances have undergone a chemical reaction so as to become
inseparable by physical means. Additionally, 40 CFR 116.4 states that
the elements and compounds appearing in Tables 116.4 A and B are
designated as hazardous substances in accordance with CWA section
311(b)(2)(A). This designation includes any isomers and hydrates, as
well as any solutions and mixtures containing these substances.
Under 40 CFR 302.6 Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) Notification Requirements,
hazardous substance mixtures are calculated by the following: (i) If
the quantity of all of the hazardous constituent(s) of the mixture or
solution is known, notification is required where an RQ or more of any
hazardous constituent is discharged; (ii) If the quantity of one or
more of the hazardous constituent(s) of the mixture or solution is
unknown, notification is required where the total amount of the mixture
or solution discharged equals or exceeds the RQ for the hazardous
constituent with the lowest RQ.
As the regulated community is already familiar with determining RQs
for mixtures or solutions for release notification under CERCLA section
103(a) (40 CFR 302.6), EPA is proposing the same requirements in Sec.
118.9 for mixtures or solutions in this action. As such, if a facility
has a mixture wherein the quantities of all the hazardous constituents
of the mixture are known, the threshold quantity would be reached when
any individual CWA hazardous substance constituent quantity reaches
that level as extrapolated to the maximum container capacity. However,
if a facility has a mixture wherein the quantities of the constituents
are not known, the facility has met the threshold when the entire
quantity of the mixture onsite reaches or exceeds the threshold
quantity for the hazardous constituent with the lowest threshold when
extrapolated to the maximum container capacity. EPA solicits comment on
this approach or suggested alternative approaches with supporting data
for determining CWA hazardous substance threshold quantities for
mixtures.
Because this proposed action would determine threshold quantity
applicability based on maximum capacity onsite, a facility would follow
the mixture rule proposed in Sec. 118.9 to determine the capacity
quantities of CWA hazardous substances onsite. For the worst case
discharge planning quantity, please see Section IV.A.4.iv of this
preamble.
b. Distance to Navigable Water
i. One-Half Mile to Navigable Water or Conveyance to Navigable Water
EPA is proposing that facilities meeting the threshold quantity of
CWA hazardous substances and located within one-half mile of navigable
water or a conveyance to navigable water complete the substantial harm
determination. This distance is based on research related to the Oil
Pollution Prevention FRP regulation.\20\ As discussed in the preamble
to the Oil Pollution Prevention FRP regulation,\21\ all facilities with
worst case discharges of oil to navigable water examined in the case
studies were located such that their closest opportunity for discharge
was within one-half mile of navigable waters. Thus, 40 CFR part 112,
Appendix C, Attachment C-III--Calculation of the Planning Distance
considers one-half mile proximity to a navigable water or a conveyance
to navigable water as part of the planning distance calculation for
overland transport. These overland transport planning distance
calculations, combined with in-water calculations, determine whether
the facility could cause substantial harm to public health and
sensitive environments due to a worst case discharge. Additionally,
conveyances located close to the facility can provide a direct pathway
to navigable waters. If this distance is less than or equal to one-half
mile, a discharge from the facility could pose substantial harm given
that the time to travel the distance from the storm drain or other
conveyance to the navigable water could be considered virtually
instantaneous (40 CFR 112, Appendix C). Given that the Oil Pollution
Prevention FRP regulation has been in place for over 30 years, industry
is familiar with this approach.
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\20\ 58 FR 8832, February 17, 1993.
\21\ ibid.
---------------------------------------------------------------------------
EPA considered using both lower and higher values for the distance
to navigable water or conveyances to navigable water and solicits
comment on alternative approaches to determining whether a facility,
because of its location, could reasonably be expected to cause
substantial harm to the environment by discharging CWA hazardous
substances into or on the navigable waters, with supporting rationale
and data.
ii. Alternatives to One-Half Mile to Navigable Water or Conveyance to
Navigable Water
EPA considered a facility self-determination model, wherein an
owner or operator would determine whether the facility has a reasonable
expectation to cause substantial harm by discharging to navigable
waters based on locational and geographic considerations using EPA-
defined criteria. Under this model, the determination would be
customized by each facility to their unique circumstances. The main
drawback to this approach is that defining universally applicable
criteria to determine whether facilities are located at a distance that
may cause substantial harm may be complicated and implementation may be
difficult and burdensome.
EPA also considered establishing proximity distances to navigable
waters for CWA hazardous substances using chemical characteristics or
historical discharge data. Under this approach, EPA would use available
CWA hazardous substance physicochemical data to calculate overland
distances to navigable water to indicate that a facility's location
potentially poses a substantial threat. However, the Agency concluded
that determining the appropriate physicochemical properties influencing
fate and transport for the 296 CWA hazardous substances is not feasible
when accounting for the large number of mixtures or wastes containing
CWA hazardous substances.
[[Page 17904]]
Additionally, worst case discharge historical data are sparse, and EPA
has identified an insufficient number of historical worst case
discharges of CWA hazardous substances to accurately set a distance
threshold using discharge history data.
EPA solicits comment and any information pertinent to these
alternative approaches as well as supporting data and rationale.
2. Substantial Harm Criteria
After determining whether a facility satisfies the initial
screening criteria, EPA is proposing that an owner or operator would
then assess whether their facility meets any of the four substantial
harm criteria: (1) Ability to cause injury to FWSE, (2) ability to
adversely impact a public water system, (3) ability to cause injury to
public receptors, and (4) reportable discharge history. If any one of
these substantial harm criteria are met, then the facility must prepare
and submit a response plan to EPA.
EPA considered the substantial harm criteria in the Oil Pollution
Prevention regulation in 40 CFR part 112 as a basis for developing CWA
hazardous substances substantial harm criteria. These criteria and
steps to determine whether they are met are further detailed below.
a. Ability to Cause Injury to Fish, Wildlife, and Sensitive
Environments (FWSE)
i. Proposed Approach
EPA is proposing a substantial harm criterion to consider the
facility's ability to cause injury to FWSE. This is based on 40 CFR
112.20(f)(1)(ii)(B) for oil FRPs, in which EPA established a criterion
for determining injury to FWSE as follows: ``The facility is located at
a distance . . . such that a discharge from the facility could cause
injury to fish and wildlife and sensitive environments . . .''
Furthermore, in 40 CFR 112.20(f)(2)(i) EPA identified that an EPA
Regional Administrator (RA) shall consider proximity to FWSEs and other
areas he or she determines to possess ecological value in his or her
assessment of whether a facility could reasonably be expected to cause
substantial harm to the environment.
EPA judged that a similar approach considering ability to cause
injury to FWSE is appropriate to determine the potential for CWA
hazardous substance discharges to cause substantial harm to the
environment.
I. Definition of FWSE
40 CFR part 112 Appendix C references the DOC/NOAA document,
``Guidance for Facility and Vessel Response Plans Fish and Wildlife and
Sensitive Environments,'' which outlines guidance for interpreting
fish, wildlife, and sensitive environments (59 FR 14713, March 29,
1994). In six appendices (I-VI), the guidance document outlines the
Federal agencies responsible for specific environmental resources (I);
critical habitats for endangered/threatened species (II); federally
protected areas (III); sensitive biological and human-use resources
(IV); ranking of shoreline habitats impacted by oil spills (V); and
contact information for regional offices (VI). As part of the statutory
requirements under the CWA, any hazardous substances worst case
discharge program must ``be consistent with the requirements of the
National Contingency Plan (NCP) and Area Contingency Plans (ACPs).''
\22\ EPA is proposing to require owners and operators to evaluate the
substantial harm criteria using the fish and wildlife definition under
40 CFR 112.2 (proposed in this rulemaking in Sec. 118.2) as well as
use applicable ACP guidance in defining fish, wildlife, and sensitive
environments in their respective regions.
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\22\ 33 U.S.C. 1321(j)(5)(D)(i). Accessed January 14, 2021.
Available at: https://www.govinfo.gov/content/pkg/USCODE-2019-title33/pdf/USCODE-2019-title33-chap26-subchapIII-sec1321.pdf.
---------------------------------------------------------------------------
An ACP is used by all agencies engaged in responding to
environmental emergencies within a defined geographical area. When
implemented in conjunction with the NCP, the ACP must be adequate to
remove a worst-case discharge, and to mitigate or prevent a substantial
threat of such discharge from a vessel, offshore facility, or onshore
facility operating in or near the defined geographical area.
Additionally, the ACP identifies areas within its bounds that may
require tailored protection or response strategies due to unique
environmental attributes. These may be endangered species habitats or
other areas defined by the ACP. The ACP provides guidance on how
responders should incorporate the needs of these areas into response
strategies. The ACP Fish and Wildlife and Sensitive Environments Plan
annex is developed in consultation with the U.S. Fish and Wildlife
Service, NOAA, and other interested parties, including state fish and
wildlife conservation officials. The annex, consistent with the NCP and
Regional Contingency Plans (RCPs), addresses fish and wildlife
resources and their habitat, and other areas considered sensitive
environments, and provides the necessary information and procedures to
immediately and effectively respond to discharges that may adversely
affect these resources, including provisions for a response to a worst
case discharge (40 CFR 300.210(c)(4)). EPA solicits comment on how
FWSEs are defined for this action.
II. FWSE Planning Distance Calculation
To determine whether a facility could cause substantial harm to a
FWSE, EPA is proposing that facilities self-determine formulas and/or
methodologies to use for overland transport and transport in water for
planning distance, using EPA-provided parameters and the lethal
concentration 50 percent (LC50) toxicity intervals provided by EPA
(Table 7). The facility owner or operator would be required to evaluate
whether the facility is located at a distance such that a worst case
discharge from the facility could cause injury to FWSE. EPA is
proposing in Sec. 118.10 that a facility owner or operator calculate
the worst case discharge scenario of the maximum single CWA hazardous
substance container, interconnected containers, pipe, or piping system
capacity onsite for a CWA hazardous substance at or above the threshold
quantity set in Sec. 118.3(a) that represents the largest capacity. If
the worst case discharge scenario indicates that the facility could
cause injury to FWSE, then the owner or operator must prepare an FRP
that addresses all CWA hazardous substances where the maximum capacity
onsite meets or exceeds the threshold quantity. The goal of calculating
planning distance is two-fold. First, planning distance determines a
facility's potential to cause substantial harm, and second, planning
distance may be part of the response plan implementation to identify
appropriate response actions. Thus, the worst case discharge scenario
is used to both determine applicability and in the hazard evaluation.
EPA is proposing to provide the toxicity thresholds and parameters
for overland transport and in-water transport, while the facility must
determine (1) where the FWSE receptors are located, and (2) if, based
on the parameters provided, a worst case discharge of CWA hazardous
substances would result in exposure of receptors to a concentration
equal to or greater than the toxicity threshold concentration provided
by EPA. The following describes the parameters reviewed, the proposed
methodology, and toxic endpoints and parameters for planning distance
calculations.
[[Page 17905]]
Toxic Endpoints
EPA is proposing in Appendix B of 40 CFR part 118 to use 10 percent
of a range of LC50 concentrations. A common risk assessment method, use
of an uncertainty factor of 10 to estimate the lower limit by dividing
the LC50 threshold by 10 (LC50/10) extrapolates the lethal
concentration used in laboratory aquatic toxicity tests to lower
concentrations than the lethal dose. This method results in a
concentration of concern that is more conservative and likely more
relevant to discharges of CWA hazardous substances to the environment.
EPA used tests involving adult fathead minnows to create the original
RQ classification; they are available for all 296 CWA hazardous
substances (43 FR 10474, March 13, 1978). EPA proposes to use 96-hour
LC50 intervals for each RQ category as the criterion for FWSE (Table
7). For mixtures of CWA hazardous substances, EPA proposes in Sec.
118.10(a) that an owner or operator shall assume the entire capacity of
the container holds the CWA hazardous substance with the lowest RQ. EPA
judges that this approach will appropriately capture the risk of CWA
hazardous substance worst case discharges causing injury to FWSE.
Table 7--Proposed Concentrations for FWSE
[Proposed Part 118 Appendix B]
----------------------------------------------------------------------------------------------------------------
Aquatic toxicity (mg/L)
Category RQ (lbs.) -------------------------------- 10% (mg/L)
Lower Upper
----------------------------------------------------------------------------------------------------------------
X............................................... 1 0 0.1 0.01
A............................................... 10 0.1 1 0.1
B............................................... 100 1 10 1
C............................................... 1,000 10 100 10
D............................................... 5,000 100 500 50
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EPA reviewed several options for toxicity endpoints for FWSE. These
included both the Criterion Maximum Concentration (CMC) and Criterion
Continuous Concentration (CCC), as well as a percentage of the LC50 for
acute aquatic toxicity tests. While the CMC and CCC have the advantage
of combining the results of multiple toxicity tests, using overarching
chemical components, there are 104 freshwater CMCs, 116 freshwater
CCCs, 97 saltwater CMCs and 97 saltwater CCCs for CWA hazardous
substance chemical compounds.\23\ EPA solicits comment on methods of
estimating concentrations based on aquatic toxicity testing that are
relevant to human and aquatic endpoints for the 296 CWA regulated
hazardous substances and how to address mixtures, with supporting
rationale and data.
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\23\ Further information is available in the TBD.
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Planning Distance Parameters
EPA is proposing in Sec. 118.10(b) that owners or operators shall
use any methodology(ies) or formula(s) that accurately reflect the
conditions at the facility location and that consider parameters
provided by EPA for overland transport and transport over water.
Overland transport parameters shall include ground conditions (e.g.,
topography, land use, soil absorption) and properties of the CWA
hazardous substance (e.g., evaporation, reactivity). In-water transport
parameters include: The point of entry to the water (i.e., flow rate,
duration, direction of the discharge); conditions of the water (i.e.,
velocity, slope, currents, turbulence, water temperature, salinity);
and properties of the CWA hazardous substance in water.
The proposed approach differs from the Oil Pollution Prevention FRP
program which specifies formulas for calculating planning distance and
allows the owner or operator to use an alternative formula(s) for
calculating planning distance (see 40 CFR part 112 Appendix C,
Attachment C-III). In this action, EPA is proposing flexibility for
determining planning distance for CWA hazardous substances to account
for the variety in chemical and physical properties of the 296 CWA
hazardous substances. EPA determined a one-size-fits-all approach for
calculating planning distances for CWA hazardous substances is not
appropriate for this particular action given the variety of hazardous
substances and the range of physicochemical properties resulting in
differences in their fate and transport. Facility owners and operators
may choose to use existing models and formulas to calculate planning
distance such as those in 40 CFR part 112 Appendix C. The owner or
operator must provide supporting documentation, rationale, and
assumptions for the formula used to calculate planning distance in
order for the EPA to evaluate the facility's determination of
substantial harm.
EPA explored other potential models for planning distance, which
are further discussed in the TBD, and considered whether the Agency
should specify formulas for calculating planning distance and/or
develop a tool to assist facility owners and operators in completing
calculations. An example of one such tool is RMP*Comp, a free software
program an owner or operator can use to complete the Off-site
Consequence Analyses (both worst case scenarios and alternative
scenarios) required under the RMP rule. RMP*Comp allows a user to input
data elements and then guides the user through the process of
conducting the analysis.
EPA solicits comment on the various model parameters, in-water and
overland transport models, scenarios, and variables which should be
included in a potential planning distance calculation as well as
whether EPA should develop a comparable tool to the RMP*Comp system for
worst case discharges CWA hazardous substances.
ii. Alternative Approaches
EPA considered using the same parameter and toxic endpoint approach
as proposed above, except with endpoints established from the CWA RQ
concentrations. In this alternative approach, EPA would use the lower
end of each RQ category concentration range for the toxic endpoint
value. Although this approach ensures that the program remains
consistent by using the RQs, considering both aquatic toxicity and
mammalian toxicity (oral), the range of concentrations for each RQ
category may be too large to accurately reflect the risk of each
substance. EPA solicits comment on this approach and potential
alternatives along with supporting data and rationale.
EPA also considered specifying formulas by chemical, chemical
category, or some other categorization.
[[Page 17906]]
The Agency evaluated existing modeling programs for water and land but
chose not to adopt an approach that specifies formulas for CWA
hazardous substance planning distance.\24\ The chemical and physical
property variation across the 296 CWA hazardous substances make it
challenging to adopt a one-size-fits-all approach to accurately
calculate planning distances. EPA solicits comment on available
technologies, methodologies, modeling programs, or formulas that could
be used to establish planning distance.
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\24\ Details on the models evaluated are included in the TBD.
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b. Ability to Adversely Impact a Public Water System
i. Proposed Approach
EPA is proposing in Sec. 118.3(c)(2) that facilities located at a
distance such that a worst case discharge from the facility has the
ability to adversely impact a public water system could reasonably be
expected to cause substantial harm to the environment. Facilities would
be required to coordinate with the public water system to determine
whether concentrations from a worst case CWA hazardous substance
discharge would result in scenarios adversely impacting the public
water system.
Public drinking water was specifically highlighted as an area of
risk of substantial harm in the OPA 90 Conference Report under
proximity to potable water.\25\ EPA proposes in Sec. 118.2 to adopt
the definition of public water system as stated in 40 CFR 141.2 and
used by the Oil Pollution Prevention FRP program, designating a public
water system as a system of public piped water for human consumption
with at least fifteen service connections or that regularly services 25
individuals for at least 60 days of the year.
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\25\ Legislative History of the Oil Pollution Act of 1990:
Public Law 101-380: 104 Stat. 484: August 18, 1990. in 8 Washington,
DC, Covington & Burling; p. 150.
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In determining whether a CWA hazardous substance discharge would
adversely impact a downstream public water system, the facility owner
or operator would be required to evaluate whether a worst case
discharge concentration would:
1. Violate Federal and state drinking water standards (e.g.,
Maximum Contaminant Levels (MCLs)),
2. Compromise the ability of a public water system to produce water
that complies with Federal and state drinking water standards,
3. Result in adverse health impacts in individuals exposed to
contaminated drinking water,
4. Contaminate public water system infrastructure, and/or
5. Cause a public water system to issue water use restrictions.
EPA expects that facilities would need to gather relevant
information related to the CWA hazardous substances onsite and
information relevant to their fate and transport following a discharge
in order to determine whether the facility has the ability to adversely
impact public water systems. This may include modeling a worst case
discharge scenario and obtaining the arrival time, duration, and
concentration of the discharge as it reaches a water intake. With that
information, the facility would coordinate with downstream public water
systems to determine impacts to the system and would be required to
document coordination.
State drinking water primacy agencies (``State agency'') may be
another resource to aid in determining impacts to public water systems.
EPCRA section 304 requires facilities to notify their State Emergency
Response Commission (SERC) or Tribal Emergency Response Commission
(TERC) and Local Emergency Planning Committee (LEPC) or Tribal
Emergency Planning Committee (TEPC) of any releases of extremely
hazardous substances (EHSs) defined under EPCRA section 302 or CERCLA
hazardous substances at or above their RQ. The America's Water
Infrastructure Act (AWIA), which amended EPCRA section 304, requires
facilities to notify the applicable State agency, which in turn
notifies community water systems of a discharge that has the potential
to impact the system's source water. In Appendix A of 40 CFR part 118,
EPA is proposing to require facilities to document and retain efforts
to coordinate with nearby public water systems regarding this
substantial harm criterion.
All states, except for Wyoming, have primacy for implementing the
Safe Drinking Water Act (SDWA). The EPA Regional Water Program
implements the SDWA for Wyoming, Washington DC, several Indian Tribes,
and the territories. State drinking water primacy agencies are required
to enforce Federal standards. State drinking water programs also have
the discretion to (1) place more stringent standards on contaminants
regulated under SDWA or (2) regulate a contaminant that is not
currently regulated under SDWA. EPA intends the proposed language to
encompass Federal drinking water standards as well as more stringent
state drinking water regulations.
This general approach covers any site-specific considerations and
contains clear and unambiguous requirements, as well as negates the
need to specify values (i.e., concentration or total mass) that result
in substantial harm; rather, it focuses on adverse outcomes that could
result from a worst case discharge. Additionally, this approach avoids
the issue of whether drinking water treatment could (or could not)
reduce the concentration of the CWA hazardous substance to below
harmful levels.
EPA recognizes challenges with this approach. First, this approach
places a burden on public water systems to voluntarily participate in
coordination activities with an unknown number of upstream facilities.
A limited number of public water systems could be inundated with
coordination requests depending on the number of potentially regulated
facilities located upstream. Second, public water systems may not fully
understand whether worst-case discharges for particular CWA hazardous
substance would result in adverse health impacts in exposed individuals
or contaminate their infrastructure given the variability of CWA
hazardous substance physiochemical properties and toxicities. This may
be especially true for smaller systems that lack the knowledge and
resources to assist in this evaluation. EPA recognizes that guidance
would need to be developed to support such evaluations. Lastly, given
their variability, the treatability of some CWA hazardous substances is
not known. Further, if a public water system does not respond to
requests to coordinate, facility owners or operators may be in a
position to make the determination without the support and expertise of
water system staff. In these instances, the regulated facility would
measure compliance at the water treatment facility intake. Another
challenge with this approach is that it does not consider other water
intakes (e.g., industrial water intakes) that may be downstream of a
potentially regulated facility. EPA solicits comment on the merits and
limitations of this approach, including situations where a public water
system declines to participate or does not respond; suggested
alternatives to this approach; and supporting data and rationale for
these alternatives.
ii. Alternative Approaches
EPA considered categorizing all facilities within Source Water
Protection Areas (SWPAs) as meeting substantial harm criteria. The 1996
Amendments to SDWA emphasized the importance of pollution prevention to
protect the safety of drinking water supplies and required states to
create a
[[Page 17907]]
Source Water Assessment Program for all public water systems. State
drinking water programs were required to:
1. Identify the land area(s) which provide water to each public
drinking water source in their state;
2. Complete an inventory of existing and potential sources of
contamination in those areas;
3. Determine the susceptibility of each drinking water system to
contamination; and
4. Distribute the results of the assessment to water users and
other interested entities.
The 1996 program requirements were intended to provide communities
with the information needed to formulate and implement protection
measures. By the early 2000s, source water assessments were completed
for all public water systems. The 1996 SDWA Amendments do not require
states to update source water assessments periodically. However, some
states opt to implement state-specific policies requiring periodic
evaluations and/or updates of assessments. States may provide access to
public water system source water assessment reports on their websites
or respond to information requests for these reports. Updating
assessment plans by the states is voluntary. As such, states, not EPA,
maintain the information and geographic boundaries of SWPAs.
For SWPAs that are publicly available, facilities could easily
determine whether they are within a boundary and it would obviate the
need for distance planning. However, EPA chose not to adopt this
approach for several reasons. First, this would increase the number of
facilities that must develop facility response plans without clearly
focusing on those that could cause the greatest harm. Additionally,
many states do not make their SWPAs available to the public, so
facility owners or operators would have to request them from the state.
Responding to these requests could place a burden on state drinking
water programs. Further, EPA does not possess the geographic boundaries
of current state SWPAs, which hinders EPA's ability to assess how
feasible this option would be to implement. This presents challenges to
estimating the facility universe or costs for this approach.
Additionally, states regulate and define SWPAs differently, and EPA has
no information on how often these areas are updated. SWPAs can be quite
large, which would likely expand the facility universe and increase
compliance costs imposed on the regulated community without necessarily
corresponding to the potential to cause substantial harm. This is
especially true in states that identify larger areas, such as entire
watersheds, to delineate SWPAs.
EPA also considered an approach whereby facility owners or
operators would self-determine whether they could adversely impact
public water systems using parameters and toxic endpoints. This
approach would parallel the methodology recommended to determine
impacts to FWSE. Setting concentration thresholds at the drinking water
intake would provide certainty to the regulated community. This
approach could be less burdensome to regulated facilities if they are
not required to coordinate with public water systems. However, the
drinking water standards EPA evaluated (e.g., MCLs) apply only to the
finished water rather than source water. Applying those drinking water
standards at the water intake, before the water is treated, may not be
an accurate reflection of whether a worst case discharge could cause
substantial harm. Additionally, it may be impractical, if not
impossible, to develop threshold concentrations at the intake that
would result in substantial harm that would broadly apply to most
public water systems for all the types of substantial harm listed under
the preferred option and for all 296 CWA hazardous substances.
EPA solicits comment on these approaches and methodologies, with
supporting rationale and data.
c. Ability To Cause Injury to Public Receptors
i. Proposed Approach
Given the intrinsic properties (e.g., physicochemical; toxicity) of
some of the CWA hazardous substances, EPA is proposing in Sec.
118.3(c)(3) a separate substantial harm criterion for facilities that
could cause injury to public receptors through a worst case discharge
to navigable waters. Additionally, EPA is proposing that substantial
harm be determined through the same parameter and toxic endpoint
approach proposed for FWSE.
EPA's proposed definition of public receptor is adapted from an EPA
chemical accident prevention and preparedness program, the Clean Air
Act (CAA) Risk Management Program, at 40 CFR 68.3, which defines a
public receptor as: ``offsite residences, institutions (e.g. schools,
hospitals), industrial, commercial, and office buildings, parks, or
recreational areas inhabited or occupied by the public at any time
without restriction by the facility where members of the public could
be exposed to toxic concentrations as a result of a worst case
discharge.'' However, the definition proposed in Sec. 118.2 is
specific to discharges to navigable waters and public receptors
subsequently likely to be affected.
This approach proposes the same planning distance parameters
recommended for FWSE, but sets the toxic endpoints at the upper bound
of the 10 percent of the RQ concentration value for mammalian oral
toxicity for each of the RQ categories: X, A, B, C, and D. This
extrapolates to lower concentrations that are more relevant to
discharges of CWA hazardous substances near public receptors (see Table
8, below).
While the original CWA hazardous substance RQs were based on
aquatic toxicity, subsequent RQ adjustments updated the RQ levels to
account for mammalian toxicity (oral, inhalation, and dermal), as well
as other physicochemical properties.\26\ A substance was rated as toxic
based on its LC50 or lethal dose 50 percent (LD50) value, which is the
concentration or dose of a substance which causes the death of 50
percent of a defined experimental animal population. Upper-bound
toxicity values were identified for each of the three intervals. These
values were correlated with a 5,000-lb RQ value. An upper-bound oral
(ingestion) toxicity value of 500 mg/kg was adopted based on the
assumption of a ``standard man'' (70 kg body weight, swallow volume of
21 cubic centimeters) being exposed to a situation which would allow
him to take one swallow of a CWA hazardous substance. Once the upper-
bound toxicity levels were chosen, the toxicity ranges in Table 8 for
the 1-, 10-, 100-, 1000-, and 5,000-lb RQ categories were scaled for
mammalian toxicity in the same ratios as the ranges for aquatic
toxicity.
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\26\ See Footnote 17.
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The mammalian oral toxicity values, which are of interest for CWA
hazardous substance discharges to water and human exposure (i.e.,
public receptors), correspond with the aquatic toxicity ranges
(presented in mg/kg and mg/L). Because these are both parts per
million, EPA proposes using the mg/L concentrations relevant to water
in Appendix B of 40 CFR part 118. The lower end of the toxicity levels
is effectively 10 percent of the upper bound. For category X, the lower
bound is effectively zero, though by taking 10
[[Page 17908]]
percent of the upper bound, EPA established a proposed concentration of
0.01 mg/L.
Table 8--Proposed Concentrations for Public Receptors
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Mammalian toxicity (oral) (mg/ Aquatic toxicity (mg/L)
kg) --------------------------------
Category RQ (lbs) -------------------------------- 10% (mg/kg) 10% (mg/L)
Lower Upper Lower Upper
--------------------------------------------------------------------------------------------------------------------------------------------------------
X....................................... 1 0 0.1 0.01 0 0.1 0.01
A....................................... 10 0.1 1 0.1 0.1 1 0.1
B....................................... 100 1 10 1 1 10 1
C....................................... 1,000 10 100 10 10 100 10
D....................................... 5,000 100 500 50 100 500 50
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While this approach does not account for inhalation toxicity, EPA
concluded that any air releases (even from a liquid discharge to
navigable water) are more appropriately covered under the CAA. This
proposal is focused on worst case discharges to navigable water, due to
the statutory authority upon which this action is based, however, EPA
notes that exposure pathways are complex. In some scenarios, aerial
deposition on waterways may be an important exposure pathway for public
receptors and FWSE. EPA solicits comment on the appropriateness of
requiring facility owners or operators to assess whether worst case
discharges could cause injury to public receptors via inhalation
exposures to either the parent compounds or degradation byproducts
(e.g., phosgene emanating from chlorinated solvents exposed to high
temperatures) and/or following volatilization followed by aerial
deposition on waterways of concern. EPA is proposing in Sec. 118.11
that CWA hazardous substance FRPs consider potential inhalation risks
in the hazard evaluation, discharge detection systems, and response
resources.
ii. Alternative Approaches
EPA reviewed several information sources for human health toxicity
values and associated endpoints for public receptors including: EPA
Integrated Risk Information System (IRIS) reference doses or reference
concentrations, National Institute for Occupational Safety and Health's
(NIOSH) Immediately Dangerous to Life or Health (IDLH), Acute Exposure
Guideline Levels for Airborne Chemicals (AEGLs), Emergency Response
Planning Guidelines (ERPGs), Minimum Risk Levels (MRLs), and
Provisional Advisory Levels for Hazardous Agents (PALs). Of these,
AEGLs, IDLHs, and ERPGs are relevant to emergency response, but are
based on inhalation toxicity tests not relevant to water discharge
exposures. While PALs are potentially relevant, they are available for
only six CWA hazardous substances. Additionally, PALs toxicity values
are not provided for acute exposures of less than 24 hours and EPA
judged that shorter exposures are more relevant for the emergency
discharge scenarios covered by this rulemaking. Similarly, while MRLs
are established for 88 of the CWA hazardous substances, they have acute
exposures for only 24 hours (not less than 24 hours).\27\
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\27\ Additional information on the toxicity values reviewed is
available in the TBD.
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EPA also considered a stratified approach, which would first apply
MRLs for those 88 CWA hazardous substances for which MRLs exist,
followed by 10 percent of the CWA RQ toxicity bounds provided to create
the RQ categories in 40 CFR part 117. Using the MRLs may provide a more
accurate representation of human exposure risk. However, the MRLs do
not use an acute toxicity value that would be appropriate for this
action. Under a discharge to water scenario, the duration of human
exposure should be at most hours, and not over one day. Additionally, a
stratified approach may be overly complicated and difficult for
regulated entities to understand and implement.
Finally, EPA considered not including ability to cause injury to
public receptors as a substantial harm criterion. The Agency
anticipates that the greatest risk to human health is through drinking
water contamination, which would be covered under the substantial harm
criterion of the ability to adversely impact public water systems. This
approach would omit any specific substantial harm criteria for public
receptors. It is unclear how many public receptors would be impacted by
a worst case discharge of a CWA hazardous substance.
However, not accounting for human health effects beyond public
water system impacts may be shortsighted. An assumption of no prolonged
exposure relies on timely detection, notification, and response, which
cannot necessarily be assumed, particularly if there are no CWA
hazardous substance FRP requirements for the facility.
EPA solicits comment on the appropriateness of its proposed
definition of public receptor, including ability to cause injury to
public receptors as a substantial harm criterion, EPA's approach to air
releases, the proposed approach, and alternative approaches, including
supporting rationale and data.
d. Reportable Discharge History
i. Proposed Approach
EPA is proposing in Sec. 118.3(c)(4) to include reportable
discharge history as a substantial harm criterion. A discharge at or
exceeding the RQ, as listed in 40 CFR 117.3, that violates CWA section
311(b)(3) (i.e., reaches navigable waters or adjoining shorelines) is a
reportable discharge. If a facility that meets the screening criteria
has had a reportable discharge within the last five years that reached
water, the facility would be considered a facility that has the
potential to cause substantial harm in the event of a worst case
discharge.
40 CFR 117.21 outlines requirements to report CWA hazardous
substance discharges. Once a facility owner or operator has knowledge
of a discharge at or exceeding the RQ, they must report the discharge
in accordance with 33 CFR part 153.203 (i.e., to the NRC or, if not
practicable, to the USCG or EPA predesignated OSC for the geographic
area where the discharge occurred). This reporting requirement serves
as a trigger for informing the government of a discharge so that
Federal personnel can evaluate the need for a response action and
undertake any necessary action in a timely fashion in accordance with
the NCP.
ii. Alternative Approaches
EPA considered an alternative approach where a reportable discharge
would include a discharge above the RQ that may not have impacted
water. EPA anticipates this approach would be
[[Page 17909]]
more protective in that it would capture more discharges and thus
result in more facilities meeting this substantial harm criterion.
Further, initial reporting to the NRC is often done with incomplete
information and before it is clear whether a discharge has violated CWA
section 311(b)(3) and a review of these reports may not accurately
identify circumstances where facilities have impacted navigable waters.
However, EPA concluded that it is more appropriate to remain consistent
with CWA statutory authority when establishing substantial harm
criteria, including specifically considering instances where discharges
violate CWA section 311(b)(3).
EPA also looked to the NCP to identify whether that would help to
establish an appropriate basis for a reportable discharge quantity to
determine the potential to cause substantial harm. However, The NCP
does not provide a quantitative value for major releases of hazardous
substances. Instead, the NCP states that a major release of a hazardous
substance poses a substantial threat to public health or welfare or the
environment, or results in significant public concern. The OSC makes
the final determination of the appropriate classification of a
hazardous substance release based on the specifics of the particular
release scenario.\28\ Regulated facilities would need to determine
whether any of their releases in the past five years have met the major
release definition. Facilities exceeding the onsite threshold quantity
of CWA hazardous substances that are within one-half mile of navigable
water and that have also had a major discharge would self-certify as
meeting substantial harm criteria and be required to submit a CWA
hazardous substance FRP. This may be difficult to evaluate and enforce,
since there are no metrics to consider in the NCP definition of size
classes for this approach.
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\28\ See 40 CFR 300.5, Size classes.
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EPA also considered not including reportable discharge history as a
substantial harm criterion. This would simplify this substantial harm
determination but may not be a logical approach, since EPA determined
that discharge history can be a reliable indicator of future discharge
potential.
EPA solicits comment on including reportable discharge history as a
substantial harm criterion, the time horizon for discharge history to
be examined, as well as on whether EPA should use the RQ, a discharge
that reached water, some other metric, and/or a ``major release'' of a
hazardous substance as defined in the NCP to determine which discharges
should be considered for this criterion, as well as supporting
rationale and data.
e. Other Substantial Harm Criteria Considerations
i. Climate Change Risk Considerations
EPA recognizes that the potential to cause substantial harm to the
environment is not static and evolves over time as factors at the
facility change, especially factors related to the changing climate and
the corresponding increase in adverse weather events and their
severity. EPA considered a forward-looking approach where a facility
owner and operator would determine the facility's vulnerability to
climate change impacts in terms of discharge potential due to flooding,
increased extreme weather events, and other changes, such as sea level
rise and subsidence.
EPA judged that the proposed criteria, which rely on consideration
of adverse weather conditions (see Section IV.A.3.b.i of this
preamble), capture this forward-thinking approach; however, the Agency
is particularly interested in feedback on how best to ensure ongoing
consideration of climate risks in preparing for CWA hazardous substance
worst case discharges. EPA solicits comments, suggestions and
supporting rationale and data on how best to incorporate climate risks
into CWA hazardous substance FRPs.
ii. Consideration of Passive Mitigation Measures and Administrative
Controls
EPA considered including lack of adequate secondary containment as
a substantial harm criterion for this action but concluded this would
be difficult for regulated entities to implement and for EPA to enforce
for CWA hazardous substances.
First, secondary containment may not be an appropriate discharge
prevention measure for all CWA hazardous substances. CWA hazardous
substances vary widely in physicochemical properties and prevention and
response strategies correspondingly differ based on the substance.
Prescribing specific containment requirements for each of the 296 CWA
hazardous substances as well as mixtures would be difficult to
determine and evaluate and may be inappropriate for some substances
altogether. Requirements to prevent CWA hazardous substances discharges
are based on many different regulatory regimes and industry standards
and thus may be difficult for an inspector to assess.
Further, EPA is proposing in Sec. 118.6 to allow facility owners
and operators to appeal their substantial harm determination. This
appeal can include consideration of prevention measures and/or
secondary containment and/or reduce their worst case discharge planning
quantity using the process. Therefore, a substantial harm criterion for
adequate secondary containment is not necessary.
EPA also considered proposing to allow for passive mitigation and
administrative controls in distance planning for a worst case discharge
to FWSE, public water systems, and public receptors in Sec. 118.10 to
further encourage facilities to use secondary containment or other
prevention measures, where appropriate. Passive mitigation could be
defined as equipment, devices, or technologies that function without
human, mechanical, or other energy input, but not active mitigation
systems, if such systems are capable of withstanding destructive events
(e.g., fires, explosions, floods, hurricanes, and earthquakes).
Scenarios involving passive mitigation systems that have connections to
the environment (such as a rainwater drain valve) would have to assume
failure of that connection. The threat of natural disasters would be
specific to certain geographic regions, and sources could certify that
their passive mitigation meets or exceeds local natural disaster design
standards as capable of withstanding destructive natural events. USTs
might also be considered a passive mitigation system for liquids. This
would be similar to the RMP program's allowance of passive mitigation
in offsite consequence analyses.\29\ EPA did not take that approach in
this proposed regulation because in the event of a worst case discharge
during adverse weather conditions, it is entirely likely that passive
mitigation measures or administrative controls could fail.
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\29\ See 40 CFR 68.25(h), 68.28(d).
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EPA solicits comment on whether and how to include passive
mitigation measures, such as secondary containment, and administrative
controls in determining substantial harm, as well as whether to
consider passive mitigation and administrative controls in planning
distance calculations. EPA also solicits comment and data on CWA
hazardous substances for which secondary containment and/or passive
mitigation might not be appropriate. Additionally, EPA solicits comment
on examples of secondary containment, passive mitigation measures, or
administrative controls that mitigated discharges thereby avoiding a
CWA section 311(b)(3) violation.
[[Page 17910]]
iii. Transfers Over Water
EPA considered, but did not choose to propose, a separate threshold
quantity for facilities that transfer CWA hazardous substances to or
from vessels over water as a ``substantial harm'' criterion. The Oil
Pollution Prevention FRP requirements in 40 CFR part 112 contain
provisions for facility transfers of oil over water to and from vessels
and has a total oil storage capacity greater than or equal to 42,000
gallons. EPA lacks information on these types of facilities for CWA
hazardous substances and on whether those facilities pose a greater
threat to human health and the environment.
In 2000, the USCG estimated that 225 companies owned approximately
450 facilities transferring bulk chemicals to or from vessels in the
United States (65 FR 17416, March 31, 2000). This estimate did not
account for chemicals on the CWA hazardous substances list (40 CFR
116.4). The number of facilities under EPA jurisdiction with transfer
operations over water of CWA hazardous substances is unknown. The USCG
proposed (65 FR 17416, March 31, 2000) that all MTR facilities that
transfer any bulk CWA hazardous substances to vessels be designated as
``significant and substantial harm'' facilities unless otherwise
reclassified by the Captain of the Port.
In establishing a threshold for over-water transfers, EPA also
considered proposing to use the same ratio as the Oil Pollution
Prevention FRP program threshold quantity for oil storage capacity for
facilities that do not transfer over water (1,000,000 gallons) to those
that transfer over water (42,000 gallons) to CWA hazardous substances.
In this approach, facilities meeting initial screening criteria and
transferring approximately 4 percent of the RQ 10,000 multiplier over
water would automatically be considered to meet the substantial harm
criteria and be required to prepare and submit a CWA hazardous
substance FRP. Alternatively, EPA considered proposing another lower
multiplier of the RQ (e.g., 10x, 100x) as the threshold amount for
facilities transferring CWA hazardous substances over water. EPA did
not adopt these approaches because the Agency lacks information about
these types of CWA hazardous substance facilities and their potential
to cause substantial harm to the environment.
EPA solicits comment on these approaches to develop a substantial
harm criterion for facilities that transfer CWA hazardous substances
over water, including whether EPA should include a criterion for
facilities transferring CWA hazardous substances over water, what
threshold quantity would be appropriate for these facilities, and
whether EPA should consider a blanket determination that these
facilities pose both significant and substantial harm to the
environment. EPA further requests data or information on the number and
types of facilities conducting CWA hazardous substance over-water
transfers currently operating in the United States.
f. Regional Administrator (RA) Determinations of Substantial Harm and
Significant and Substantial Harm
The CWA directs the President to develop criteria to identify those
facilities that could reasonably be expected to cause substantial harm
to the environment. Consistent with the approach in 40 CFR part 112 for
oil FRPs, EPA concluded that the RA has the authority to require CWA
hazardous substance FRPs, after consideration of site-specific factors
for a facility, regardless of whether a facility meets the criteria in
proposed Sec. 118.3. In Sec. 118.5(a), EPA is proposing language that
identifies the RA authority and the notification requirements and
timeframe within which the facility owner or operator must submit the
plan. EPA judged that this is appropriate for CWA hazardous substances
due to the wide variability in the substances themselves, how they are
used and stored, surrounding communities, and other local
considerations of which the RA will have considerable knowledge.
To determine whether a facility could reasonably be expected to
cause substantial harm following a CWA hazardous substance worst case
discharge, EPA is proposing factors for the RA to evaluate in Sec.
118.5(b). The RA can consider transfer operation type; CWA hazardous
substance quantities and categories onsite; proximity to FWSE and other
areas that possess ecological value; ability to adversely impact public
water systems; location in a SWPA; ability to cause injury to public
receptors; reportable discharge history; lack of passive mitigation
measures, including measures that enhance resilience to climate change;
potential for a worst case discharge to cause harm to communities with
environmental justice concerns; potential vulnerability to climate
change; or other site-specific characteristics and environmental
factors that the RA determines to be relevant to protecting the public
or environment from substantial harm by CWA hazardous substances
discharges into navigable waters. These factors provide flexibility for
EPA to identify those facilities that could cause substantial harm to
the environment that might not otherwise fit the criteria proposed in
this action.
Furthermore, the CWA directs the President to develop criteria to
identify a subset of the substantial harm facilities that could
reasonably be expected to cause both significant and substantial harm
to the environment. EPA is proposing in Sec. 118.5(d) that the RA can
consider, in addition to the substantial harm criteria found in
Sec. Sec. 118.3(c) and 118.5(b), factors that include: Frequency of
past reportable discharges; proximity to navigable waters or
conveyances to navigable waters; age of equipment; potential for
hazards such as flooding, hurricanes, earthquakes, or other disasters
that could result in a worst case discharge; and other facility-
specific and Region-specific information, including local impacts on
public health. The Agency concluded that these considerations, in
addition to the substantial harm criteria proposed in Sec. Sec.
118.3(c) and 118.5(b), provide a flexible, risk-based approach to
designating facilities that meet substantial harm or significant and
substantial harm criteria. By allowing the RA to consider a wide
variety of data points and local considerations, he or she can
appropriately target those CWA hazardous substance facilities posing a
significant and substantial harm to human health or the environment to
prepare CWA hazardous substance FRPs and require EPA approval of those
plans.
Consistent with CWA requirements, EPA is proposing to specify
actions that EPA will take to review CWA hazardous substance FRPs in
Sec. 118.5(c). This includes promptly reviewing plans, requiring
amendments, approving plans, and reviewing plans on a schedule.
Finally, EPA is proposing in Sec. 118.6 a process for facility
owners or operators to appeal the substantial harm or significant and
substantial harm determinations. See Section IV.C. of this preamble for
further discussion.
EPA solicits comments on these provisions and supporting rationale
or data for alternative approaches.
3. Other Applicability Criteria
a. Exceptions
EPA analyzed applicability exceptions for major EPA and Federal
non-EPA hazardous substances regulations. EPA also reviewed industry
and use-specific exemptions in EPA hazardous substances programs. These
exceptions can extend so far as to exclude facilities storing or using
hazardous substances in exempted
[[Page 17911]]
categories from all requirements of the program.
EPA is proposing in Sec. 118.8(a)(4) to except USTs as defined in
40 CFR part 280 from the regulatory requirements in this action. This
proposed exception aims to reduce the burden of overlapping regulatory
requirements. Under 40 CFR part 280, a hazardous substance UST is
defined as an underground storage tank system containing a hazardous
substance defined in section 101 of CERCLA, including mixtures of
substances with petroleum, which is not a petroleum UST system. For the
hazardous substances UST program, owners and operators must report
releases to the Agency within 24 hours, take immediate action to
prevent any further release of the substance, and identify and mitigate
fire, explosion, and vapor hazards.
USCG regulates facilities transferring oil or hazardous materials
in bulk and considers exemption requests from facilities.\30\ USCG
reviews exemption requests to determine that compliance with the
regulatory requirement is economically or physically impractical; that
no alternative procedures, methods or equipment standards exist that
would provide an equivalent level of safety from pollution by hazardous
materials; and the likelihood of discharge does not increase as the
result of an exemption. EPA addresses this petition issue (discussed in
detail in Section IV.C.4 of this preamble) through proposing to adopt
language allowing facilities to request reconsideration of substantial
harm status from the RA. Therefore, the Agency is not proposing to
adopt language allowing facilities to request reconsideration of
substantial harm status from the RA as an exemption but solicits
comment on whether a similar provision is needed for this proposed
regulation.
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\30\ See 33 CFR 154.108.
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b. Threshold Exemptions
Several hazardous substance regulations, under both EPA and other
Federal agencies, exempt the counting of hazardous substances with
specific uses towards the calculation of the threshold quantity. EPA is
proposing in Sec. 118.8(b) to exempt articles and specific uses
including in use as a structural component of the facility; use of
products for routine janitorial maintenance; use by employees of foods,
drugs, cosmetics, or other retail and personal items containing the CWA
hazardous substance; process water or cooling water; use of CWA
hazardous substances present in process water or non-contact cooling
water as drawn from the environment or municipal sources; use of CWA
hazardous substances present in air used either as compressed air or as
part of combustion; and retail and personal uses.
The intent of these exemptions is to reduce the burden of
incorporating limited quantities of hazardous substances contained
within articles and other products listed, which are unlikely to be
discharged in a worst case scenario. EPA proposes to adopt these
exemptions in counting CWA hazardous substances toward total threshold
quantity calculations.
c. Alternative Exceptions and Exemptions
EPA solicits comments and rationale for excluding any industries,
product types, or uses for both excepted from all regulatory
requirements (Sec. 118.8(a) Exceptions) as well as in threshold
quantity calculations (Sec. 118.8(b) Exemptions).
4. Worst Case Discharge Calculations
In Sec. 118.2, EPA is proposing a regulatory definition for worst
case discharge for onshore non-transportation-related facilities.
Specifying the definition is necessary for a facility owner or operator
to determine a planning quantity that corresponds to the largest
foreseeable amount of a CWA hazardous substance that could be
discharged under worst case circumstances when preparing a response
plan, and to determine distance to endpoints for applicability. EPA is
proposing a definition for distance to endpoint in Sec. 118.2 as the
distance a CWA hazardous substance will travel before dissipating to
the point that a worst case discharge will no longer cause injury to
public receptors or fish, wildlife, and sensitive environments as in
proposed Appendix B or adversely impact a public water system as in
proposed Sec. 118.3(c)(2). The facility's worst case discharge
quantity will significantly affect the response resources and equipment
necessary to implement the plan. The CWA defines a worst case discharge
as the largest foreseeable discharge in adverse weather conditions.\31\
EPA is proposing to adopt this definition in this action, consistent
with the Oil Pollution Prevention FRP program and DOT's worst case
discharge regulations. EPA is proposing in Sec. 118.10 that for all
CWA hazardous substances, the worst case discharge scenario will
represent the largest capacity container of a single CWA hazardous
substance, which meets or exceeds the threshold quantity at the
facility as a whole, in a container or group of interconnected
containers. Therefore, the facility owner or operator need only to
define one worst case discharge quantity regardless of how many CWA
hazardous substances are present onsite. However, an FRP will need to
identify and plan for all CWA hazardous substances with a maximum
capacity on site that meets or exceed the threshold quantity.
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\31\ See 33 U.S.C. 1321(a)(24).
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EPA recognizes that there are advantages and disadvantages to
establishing a worst case discharge quantity for a facility. Specific
information on the worst case discharge scenario will assist facility
and public emergency planners and responders recognize the maximum
hazard potential surrounding the facility. This allows planners to
identify the necessary resources and equipment to respond to the worst
case discharge from the facility.
However, the worst case discharge scenario may be unlikely in
comparison to other discharge scenarios with smaller quantities of CWA
hazardous substances posing lesser potential consequences. Focusing on
the worst case scenario alone, therefore, could lead facility owners
and operators, public agencies, and the public to overestimate the
threat posed by a facility and commit unnecessary resources for
planning purposes. EPA solicits comment on the proposed definition of a
worst case scenario, as well as the approach to focus on a single worst
case discharge planning quantity for a facility that could have
multiple CWA hazardous substances onsite.
a. Adverse Weather Conditions
The worst case discharge scenario is defined as the largest
foreseeable discharge in adverse weather conditions. EPA is proposing
in Sec. 118.2 to define adverse weather conditions as weather
conditions that hinder response activities and that must be considered
in identifying appropriate response strategies, tactics, and equipment,
to include the potential for increased incidence and severity of
extreme weather events due to climate change, as well as other climate
change impacts. EPA judged that this definition is appropriately
forward-looking and encompasses a wide range of potential weather
conditions due to climate change that could affect a facility's
potential worst case discharge and response to such a discharge. EPA
solicits comment on this definition and alternative language and
considerations.
[[Page 17912]]
b. Worst Case Discharge Scenarios
i. Proposed Approach
In Sec. 118.10, EPA is proposing to require facilities to develop
one worst case discharge scenario for the container with the largest
capacity of a CWA hazardous substance with a maximum capacity onsite
that meets or exceeds the threshold quantity in one container or group
of interconnected containers. This would capture the worst case
discharge at the facility for CWA hazardous substances and be used to
both determine applicability and for the FRP hazard evaluation.
This action is focused on worst case discharges of CWA hazardous
substances and EPA is not proposing to require planning for less than
worst case discharge scenarios, as per the statutory authority.
Additionally, planning for a worst case discharge should help ensure
that the appropriate plans, response personnel, and equipment are ready
should a less than worst case discharge occur.
This approach may be problematic for some facilities such as batch
processors and warehouses where the use of CWA hazardous substances or
inventory may vary considerably. It also would not account for a
facility that could have different worst case discharge scenarios
reaching two different bodies of water or requiring different response
resources under adverse weather conditions.
ii. Alternatives to Proposed Worst Case Discharge Approach
I. Additional Worst Case Scenarios if Response Equipment Differs
EPA considered requiring one worst case scenario for the largest
capacity container or group of interconnected containers at a facility
and additional scenarios for additional CWA hazardous substances if the
response equipment differs from the primary worst case scenario. One
worst case discharge scenario would be defined for the largest capacity
container of a single CWA hazardous substances above a threshold
quantity or group of interconnected containers, as detailed in the
proposed worst case discharge quantity. However, if the facility also
has a second CWA hazardous substance that exceeds the threshold
quantity which would require differing response equipment or procedures
than the primary worst case scenario, the facility must develop a
second worst case scenario. This would account for a facility that
could have different CWA hazardous substances reaching different
navigable waters, one CWA hazardous substance reaching multiple
navigable waters, or different CWA hazardous substances reaching the
same navigable waters but requiring different response equipment, which
all occur in adverse weather conditions. However, this still may be
problematic for some facilities such as batch processors and warehouses
where use of CWA hazardous substances or inventory may vary
considerably.
II. Additional Worst Case Scenarios if Receptors Differ
EPA also considered requiring one worst case scenario for each CWA
hazardous substance with a maximum capacity onsite above the threshold
quantity if different receptors would be affected and different
response resources would be required. One worst case discharge scenario
would be defined to represent each CWA hazardous substance above a
threshold quantity in its largest container. A facility would be
required to evaluate worst case scenarios for each CWA hazardous
substance at the facility, unless it can show that no additional
receptors (public water system, FWSE, or public receptors) would be
impacted in a worst case discharge with the additional CWA hazardous
substance(s) or categories of CWA hazardous substances. Each worst case
scenario would include planning distance calculations.
III. Additional Worst Case Scenarios Based on Hazard Class
EPA considered requiring additional worst case discharge scenarios
based on hazard classification. In this situation, an owner or operator
would model a worst case discharge scenario for each hazard class of
the CWA hazardous substances with a capacity onsite above a threshold
quantity at his or her facility. Requiring scenarios based on hazard
classification may clarify response requirements and ensure equipment
and response resources available are appropriate to each class of
hazardous substance present onsite, since response considerations are
likely to be similar within hazard classes. Additionally, industry and
responders should be familiar with these types of commonly used
classification systems. Examples of common hazard classification
systems are DOT's hazard classification system found at 40 CFR 173.2 or
the CWA hazardous substance reportable quantity categories in 40 CFR
117.3.
EPA solicits comment on requiring additional worst case discharge
scenarios based on hazard classification, including the preferred
classification system and reasons for its use.
IV. Alternative Discharge Scenarios
EPA also considered requiring alternative discharge scenarios. This
approach would require facility owners or operators to evaluate
additional alternative discharge scenarios to account for more probable
discharge scenarios and varying adverse weather conditions which could
impact different downstream receptors compared to the worst case
discharge. EPA recognizes that the worst case scenario may often be
improbable compared to other discharge scenarios with potentially fewer
and less serious consequences. Focusing on the worst case scenario
alone, therefore, could lead facility planners, public agencies, and
the public to overestimate the threat posed by a facility. Therefore,
EPA considered requiring facilities to examine a range of events in
addition to the worst case scenario, including more probable
discharges, and communicating information on these events to public
agencies and the public to provide additional information on the
hazards posed by the facility. This approach would reflect disparate
chemical risk and offsite consequences. However, it is unclear whether
requiring facilities to examine more probable discharge scenarios would
result in a different emergency response action as compared to the
worst case discharge.
Either the facility owner or operator or EPA would need to
determine the appropriate number of alternative discharge scenarios to
be evaluated. Although the worst case scenario is specifically defined,
facilities are likely to use varying models and approaches to estimate
offsite impacts, which may be appropriate in accounting for site-
specific conditions associated with other scenarios.
EPA solicits comment on the worst case discharge number of
scenarios, scenarios for different CWA hazardous substances onsite,
quantity calculations, examining chain reactions of failures,
methodologies, and the types of alternative discharge scenarios
facilities should consider with supporting rationale and data. EPA also
solicits comment on allowing consideration of active mitigation, which
could be equipment, devices, or technologies that need human,
mechanical, or other energy input to function, in worst case discharge
scenarios. Examples of active mitigation for CWA hazardous substance
discharges to land and water could include containment dams in onsite
conveyances, culvert plugs, chemical neutralization, sorbent materials,
and other measures.
[[Page 17913]]
c. Worst Case Discharge Distance to Endpoints
EPA is proposing in Sec. 118.10(b) that a facility owner or
operator may use a methodology, model, or other technique that accounts
for the stated requirements to calculate the distance to each endpoint.
An owner or operator may use proprietary models provided that he or she
allows EPA access to the model and describes the model's features to
local emergency planners, upon request. The stated requirements are:
1. Identifying endpoints: This step in the process requires the
identification of endpoints for each CWA hazardous substance. EPA is
proposing endpoints in Appendix B for FWSE and public receptors.
2. Calculating the distance to endpoints: Endpoints are critical in
calculating distances from the nearest opportunity for discharge,
within which human health and the environment could expect to be
adversely affected. In addition to the characteristics of the CWA
hazardous substances the FRP addresses, distances to endpoints are
affected by planning quantities and impact analysis parameters.
3. Compare endpoint concentration(s) against calculated
concentration(s).
The Agency recognizes facilities will need to have in-house
expertise or hire consultants with such expertise to complete these
offsite impact analyses. This may pose a significant resource burden on
some facilities. The Agency requests comment on approaches to minimize
this burden and ensure the results are useful for facility and local
emergency planners.
The Agency recognizes the limitations associated with simple,
generic tools needed to cover a potentially wide variety of scenarios.
It would be difficult to construct a generic methodology inclusive of
all chemical characteristics and other site-specific parameters. As a
result, a generic methodology will generally be less sensitive to these
site-specific conditions and therefore may provide less realistic
estimates of offsite impacts. The Agency requests comment on this
approach and requests input on possible innovative ways to assist
facilities in offsite impact analysis that might reduce the burden and
provide meaningful, useful results.
d. Worst Case Discharge Quantity
In Sec. 118.10(a), EPA is proposing that the worst case planning
quantity be based on the largest capacity container of a CWA hazardous
substance or group of interconnected containers for a CWA hazardous
substance with a maximum capacity onsite above the threshold quantity.
For mixtures, an owner and operator should assume the entire capacity
of the container holds the CWA hazardous substance with the lowest RQ.
Using the container or interconnected containers with the largest
storage capacity as a worst case discharge quantity provides a
conservative approach by using the largest potential discharge
quantity. It may also be simpler for both facilities and EPA to
calculate storage capacity versus the maximum quantity stored in a
single container or group of interconnected containers.
Under CWA section 311, a worst case discharge is defined as the
largest foreseeable discharge in adverse weather conditions, including
a discharge resulting from fire or explosion. This quantity will be
used in the distance planning calculation to determine whether a
facility is considered to meet substantial harm criteria with respect
to the various receptors. The worst case discharge quantity will also
be used by the facility owner or operator to plan appropriate response
resources, equipment, and actions.
EPA considered but is not proposing to allow facilities to take
written administrative controls that limit the maximum quantity in a
container into account. EPA determined that these types of controls may
be overridden or are easily overlooked, and thus may not be reliably
counted on to limit quantities. EPA solicits comment on allowing
administrative controls to be accounted for in worst case discharge
quantity calculations.
EPA is not proposing to apply a credit for single-facilities with
existing secondary containment for the worst case discharge quantity
for CWA hazardous substances. In the Oil Pollution Prevention FRP
program (Appendix D to 40 CFR part 112), for the worst case discharge
planning volume calculation at single-tank facilities, secondary
containment credit is applied by multiplying the capacity of the tank
by 0.8 (i.e., 80 percent of the tank capacity). Please see the
discussion of secondary containment and passive mitigation in Section
IV.A.2.e.ii of this preamble.
For this action, interconnected containers are defined containers
that are connected via pipes, hoses, or other conveyance to allow
movement of a CWA hazardous substance between containers. In a worst
case discharge scenario, a single failure could cause the discharge of
the contents of more than one container if they are interconnected. The
owner or operator must provide evidence in the response plan that
containers with common piping or piping systems are not operated as one
unit. If such evidence is provided and is acceptable to the RA, the
worst case discharge planning quantity would be based on the largest
CWA hazardous substance maximum capacity onsite in interconnected
containers without common piping systems or in one container, whichever
is greater.
EPA solicits comment on the proposed definition of worst case
discharge quantity, calculation of the worst case discharge quantity
based on capacity, mixtures, and a secondary containment or passive
mitigation reduction.
5. Substantial Harm Certification Form
a. Proposed Approach
EPA is proposing a Substantial Harm Certification Form in 40 CFR
part 118 Appendix A that includes the substantial harm criteria and
additional data requirements. The proposed form includes fields to
capture the screening and substantial harm criteria, as well as the
names, Chemical Abstract Service Registry Numbers (CASRN), and
quantities of onsite CWA hazardous substances, distance planning
calculations, impact analysis, model schema and data dictionaries, if
not already vetted by industry and academia.
In Sec. 118.4(c), EPA is proposing that all facilities that meet
the CWA hazardous substances threshold quantity in Sec. 118.3(a) and
the proximity to navigable waters criterion in Sec. 118.3(b) must
complete the Substantial Harm Certification Form proposed in Appendix A
of this action. This includes all facilities that meet criteria in
Sec. 118.3(a) and (b), regardless of whether they meet the substantial
harm criteria pursuant to Sec. 118.3(c). In accordance with Sec.
118.4(c)(1), the facility owner or operator must complete and submit to
the RA the certification form contained in Appendix A to this part
within one month of the compliance date proposed in this action (See
Section IV.C.2 of this preamble for a discussion of proposed compliance
dates) or, for new facilities, within one month of meeting the Sec.
118.3(a) and (b) criteria. All owners or operators required to complete
the substantial harm certification form would submit the form to the RA
as well as maintain the form onsite so that it is available during
compliance inspections. EPA is further proposing in Sec. 118.4(c)(3)
that the owner or operator submit updates to the RA every five years or
within 60 days of a change at
[[Page 17914]]
or outside of the facility (e.g., construction of a new water intake)
that impacts the facility's potential to cause substantial harm to the
environment in accordance as outlined in Sec. 118.3. This ensures that
the facility review their potential to cause substantial harm to the
environment periodically and that EPA has access to updated information
in a timely manner. This proposed approach is based on the Oil
Pollution Prevention FRP program, in which facility personnel must
complete, and maintain at the facility, a certification form which
identifies substantial harm information for the facility (see 40 CFR
part 112 Appendix C, Attachment C-II). The form is required of all
SPCC-regulated facilities and requires signature by the certifier for
the facility.
EPA is proposing in Sec. 118.4(c)(2) that the facility attach
information that demonstrates the reliability and analytical soundness
of the substantial harm evaluation as well as a review of potential
receptors that could be impacted as a result of a CWA hazardous
substance discharge. The additional information would assist EPA in
making compliance determinations as well as provide sufficient
information to identify those facilities that could reasonably be
expected to cause significant and substantial harm to the environment.
EPA proposes that the Substantial Harm Certification Form found in
Appendix A include a value for ``Parent Company'' that comports with
the definition proposed in Parent Company Definition for TRI Reporting
(86 FR 53577, September 28, 2021). This would provide consistency
across programs and aid in compliance and enforcement activities.
EPA requests comment on the proposed approach to require a
Substantial Harm Certification Form. EPA further requests comment on
the information requested in the certification form proposed in
Appendix A, the requested supporting documentation, and the timeframes
for submitting and updating the information.
b. Alternative Approaches
EPA also considered, but did not propose, requiring facilities that
meet the initial screening criteria in Sec. 118.3(a) and (b) to
maintain the form only onsite, rather than submit it to EPA. Under the
Oil Pollution Prevention regulation (40 CFR part 112), SPCC plans are
not filed with EPA, but FRP facilities must submit FRP plans for
review, and approval as appropriate. Under this onsite only approach,
the burden on facilities to submit the form, and on EPA to maintain the
data, would be reduced. However, the largest burden related to the
certification form is the planning distance calculation and impact
evaluation. Regardless of whether EPA requires this information in the
certification form, the facilities would be required to complete
planning distance calculations and submit their supporting
documentation to EPA.
EPA also considered requiring facilities to submit their
information electronically. EPA determined that electronic submission
and management of CWA hazardous substance FRPs would simplify the
process for both industry and the Agency. Using this type of system
would allow industry to easily submit and make changes and amendments
to their plans, while EPA could review, require amendments, and approve
plans. However, such a system could be costly to set up and maintain.
An electronic submission and review system could also be used to
provide the public with access to all or some of the submitted data
from facility owners and operators, which allows for transparency and
availability of data to the public including communities with
environmental justice concerns and those vulnerable to climate change
impacts. EPA chose not to specify electronic submission in the
regulatory text to allow flexibility in implementing regulatory
requirements based on available resources.
EPA solicits comment on these approaches. Specifically, EPA
solicits comment on whether to make the Substantial Harm Certification
form available to the public, including methods, systems, and data
elements that should be shared, as well as alternatives to the proposed
approach, including supporting data and rationale.
B. Response Planning
This proposed rulemaking is specific to the requirements in CWA
section 311(j)(5) for facilities that, because of their location, could
reasonably be expected to cause substantial harm to the environment by
discharging CWA hazardous substances into or on the navigable waters.
Additionally, these proposed regulations would require an owner or
operator of a covered facility to prepare and submit to the EPA a plan
for responding, to the maximum extent practicable, to a worst case
discharge, and to a substantial threat of such a discharge, of a CWA
hazardous substance.
EPA is proposing to define ``maximum extent practicable'' as within
the limitations used to determine CWA hazardous substance discharge
planning resources for recovery, shoreline protection, and cleanup for
worst case discharges from onshore non-transportation-related
facilities in adverse weather, as appropriate. It includes the planned
capability to respond to a worst case discharge in adverse weather, as
described in a CWA hazardous substance FRP. This planned capability may
require planning for actions other than containment and recovery of
discharged CWA hazardous substances.
With regard to the involvement of Federal response resources in
determining maximum extent practicable, EPA notes that one major
objective of the OPA 90 amendments to section 311(j)(5) of the CWA was
to create a system in which private parties supply the bulk of response
resources needed for an oil spill response in a given area.\32\ While a
worst case discharge of hazardous substances will likely require the
use of both public and private resources, section 311(j)(5)(D)(iii)
states specifically that facility owners or operators must identify and
ensure by contract or other means the availability of private personnel
and equipment necessary to respond to the maximum extent practicable to
a worst case discharge.
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\32\ See OPA Conference Report, H.R. Rep. No. 101-653, 101st
Cong., 2d Sess. 1990 at p. 150.
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EPA is proposing in Sec. 118.11 requirements that ensure access to
certain information and equipment during a response and the
availability of appropriate technical expertise, as necessary. Certain
requirements mirror those found in the Oil Pollution Prevention FRP
regulation and others do not. A written plan that complies with other
Federal contingency plan regulations or is consistent with the approach
in the National Response Team's Integrated Contingency Plan Guidance
(``One Plan'') and that includes the elements required would satisfy
the requirements of this proposed rule. Facilities may augment an
existing response plan with requirements that are specific to this
action.
The proposed requirements below closely follow those required by
the Oil Pollution Prevention FRP regulation, with some modifications to
address concerns specific to CWA hazardous substances.
1. Consistency With the NCP and ACPs
The CWA section 311(j)(5)(D)(i) requires that response plans, ``. .
. be consistent with the requirements of the [NCP] and [ACPs] . . .''
The NCP is the Federal government's blueprint for responding to both
oil spills and
[[Page 17915]]
hazardous substance discharges. The NCP is the result of efforts to
develop a national response capability and promote coordination among
the hierarchy of responders and contingency plans. Congress has
broadened the scope of the NCP over the years. As required by the CWA
of 1972, the NCP was revised to include a framework for responding to
hazardous substance releases, as well as oil spills. OPA 90 further
amended the CWA to establish Area Committees to create ACPs that, when
implemented in conjunction with the NCP and RCPs, be adequate to remove
a worst case discharge, and to mitigate or prevent a substantial threat
of such a discharge, of oil and of hazardous substances, amongst other
requirements.
ACPs are mandated under CWA section 311(j)(4) and prepared by Area
Committees comprised of members appointed by the President from
qualified Federal, state, and local agency personnel. The term ``ACP''
is used generically to represent the applicable ACP, RCP, Regional
Integrated Contingency Plan, etc., as geographically relevant to the
area(s) under discussion. When implemented in conjunction with the NCP,
ACPs must be adequate to remove a worst case discharge, and to mitigate
or prevent a substantial threat of such a discharge, from a facility
operating in or near the area covered by the plan. ACPs cover
discharges affecting all navigable waters and adjoining shorelines.
Under E.O. 12777, EPA and the USCG are responsible for establishing
Area Committees for the inland and coastal zones, respectively. In the
inland zones for which EPA has jurisdiction, ACPs have been completed
by Area Committees and approved by EPA. The ACP process is dynamic, and
Area Committees will continue to refine the ACPs to provide more
detailed information on protection priorities, develop protection
strategies, and identify appropriate cleanup strategies for inland
areas. Area Committees have the option to further subdivide their areas
into smaller, geographically distinct subareas and develop geographic-
specific annexes for these subareas. Members of the public may
contribute to the ACP refinement process through communication with
Area Committees in the development of geographic-specific annexes.
In Sec. 118.11(a)(1), EPA is proposing that CWA hazardous
substance FRPs shall be consistent with the requirements of the NCP and
applicable ACPs prepared pursuant to section 311(j)(4) of the CWA.
Additionally, the owner or operator shall review relevant portions of
the NCP and applicable ACP annually and, if necessary, revise the CWA
hazardous substance FRP to ensure consistency with these plans. EPA
solicits comment on this approach.
2. LEPC or TEPC Coordination
The OPA Conference Report states that Oil Pollution Prevention FRPs
should be consistent with plans prepared under other programs, and that
any information developed under CWA section 311(j) should be made
available to SERC or TERC and LEPC or TEPC.\33\ Consistent with that
approach, for CWA hazardous substances the EPA is proposing in Sec.
118.12 that a CWA hazardous substance FRP should be consistent with the
local emergency response plan for the community in which the facility
is located. To ensure consistency, facility owners or operators should
coordinate FRPs with their LEPC (or TEPC) local emergency response plan
developed under EPCRA section 303. In addition, upon request by the
SERC (or TERC) and LEPC (or TEPC), the facility should provide a copy
of the CWA hazardous substance FRP.
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\33\ See OPA Conference Report, H.R. Rep. No. 101-653, 101st
Cong., 2d Sess. 1990 at p. 151.
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EPA has examined numerous examples of emergency planning
coordination in existing regulations. Under the Oil Pollution
Prevention FRP regulation, 40 CFR 112.20(g)(1), ``The facility response
plan should be coordinated with the local emergency response plan
developed by the local emergency planning committee under section 303
of Title III of the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or operator
should provide a copy of the facility response plan to the local
emergency planning committee or State emergency response commission.''
The RMP rule has an equivalent provision under section 68.95(c) and
additional local emergency planning and response organization-related
provisions at 68.93, such as:
--The owner or operator of a stationary source shall coordinate
response needs with local emergency planning and response organizations
to determine how the stationary source is addressed in the community
emergency response plan and to ensure that local response organizations
are aware of the regulated substances at the stationary source, their
quantities, the risks presented by covered processes, and the resources
and capabilities at the stationary source to respond to an accidental
release of a regulated substance.
--Coordination shall occur at least annually, and more frequently if
necessary, to address changes: At the stationary source; in the
stationary source's emergency response and/or emergency action plan;
and/or in the community emergency response plan (40 CFR 68.93(a)).
--Coordination shall include providing to the local emergency planning
and response organizations: The stationary source's emergency response
plan if one exists; emergency action plan; updated emergency contact
information; and other information necessary for developing and
implementing the local emergency response plan. For responding
stationary sources, coordination shall also include consulting with
local emergency response officials to establish appropriate schedules
and plans for field and tabletop exercises. The owner or operator shall
request an opportunity to meet with the local emergency planning
committee (or equivalent) and/or local fire department, as appropriate,
to review and discuss those materials (40 CFR 68.93(b)).
--The owner or operator shall document coordination with local
authorities, including: The names of individuals involved and their
contact information (phone number, email address, and organizational
affiliations); dates of coordination activities; and nature of
coordination activities (40 CFR 68.93(c)).
EPA considered following the RMP model in this proposed action.
Both the Oil Pollution Prevention FRP program and the RMP rule account
for coordination with local emergency response planners (i.e., LEPCs),
but the RMP rule includes specifics on activities during coordination
between the facility and the local response organization, the frequency
of coordination, and documentation of the coordination. Due to the
likely involvement of local emergency responders in CWA hazardous
substance response actions, EPA judged that this level of detail is
warranted for coordination and documentation.
EPA is considering various documentation requirements for this
action. Under the RMP rule (40 CFR 68.93(c)), the owner or operator
must document coordination with local authorities. EPA solicits comment
on including the documentation requirement in this action, as well as
on expanding this requirement to document agreement between the
[[Page 17916]]
facility and local responders on actions or resources that are
identified as the responsibility of the local responders.
As per Section IV.2.d.xvii of this preamble, EPA is proposing in
Sec. 118.13 that facility owners or operators coordinate with local
emergency response officials and invite them to participate in drills
and exercises. CWA section 311(j)(6) authorizes periodic inspection of
containment booms, skimmers, vessels, and other major equipment used to
remove discharges. CWA section 311(j)(7) requires unannounced drills.
Establishing a program that follows the National Preparedness for
Response Exercise Program (PREP) guidelines satisfies the exercise
requirements of the EPA, USCG, the Pipeline and PHMSA, and the Bureau
of Safety and Environmental Enforcement (BSEE).\34\ PREP is a joint
industry and government effort to establish recognized national
guidelines for conducting drills and exercises to meet the CWA section
311 drill and exercise requirements.
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\34\ See the 2016.1 PREP Guidelines, effective October 1, 2018,
at https://homeport.uscg.mil/Lists/Content/DispForm.aspx?ID=30271&Source=/Lists/Content/DispForm.aspx?ID=30271.
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Under the RMP rule, coordination occurs at least annually and more
frequently, if necessary. Aligning with RMP is logical due to the
overlap in potentially regulated facilities,\35\ and LEPCs or TEPCs
that will likely play a significant role in responding to CWA hazardous
substance discharges. Note that EPA's cost estimates do not include
costs incurred by state and local agencies to identify water intakes,
nor coordination and planning costs for emergency planning and
exercises that SERCs, LEPCs and emergency responders may incur.
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\35\ See RIA for more information.
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EPA solicits comment on the cost and appropriate frequency of
coordination, including for public water systems, LEPC time commitment,
and procedures if an LEPC in the area is inactive.
3. QI Designation and Duties
The CWA section 311(j)(5)(D)(ii) requires that response plans, ``.
. . identify the qualified individual having full authority to
implement removal actions and require immediate communications between
that individual and the appropriate Federal official and the persons
providing personnel and equipment . . .'' One of the primary
responsibilities of the QI is, upon learning of a discharge of CWA
hazardous substance, to immediately communicate with the appropriate
Federal official and the persons providing personnel and equipment for
the discharge response. This procedure will ensure timely notification
of Federal officials so that they may activate ACPs; notify other
Federal, state, tribal, and local agencies; ensure adequate measures
are taken by the responsible party; and activate governmental response
resources, when necessary. It also ensures that response resources
identified will commence appropriate response actions in a timely
manner. EPA is proposing that regulated facilities be required to
identify a QI who is capable of immediately communicating with the
appropriate Federal official and response resource providers and has
the full authority to implement removal actions to contain and remove
the CWA hazardous substance(s) discharged.
EPA is proposing specific duties for QIs in Sec. 118.11(a)(2). The
Agency is proposing the same duties for the QI as are required in the
Oil Pollution Prevention FRP regulation and is also proposing an
additional requirement to notify and provide necessary information to
public water systems that may be impacted by a discharge.\36\ The
Agency is not assuming that the QI for an oil spill response will
necessarily be the appropriate QI for CWA hazardous substance
incidents.
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\36\ See 40 CFR 112.20(h)(3)(ix).
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A QI must have basic knowledge of chemical response to be able to
characterize the nature of the incident to responders. Therefore, EPA
is proposing minimum training requirements for a QI. To build on an
existing standard that is widely accepted and demonstrates the
appropriate skill set, EPA proposes that a QI must be trained as an
incident commander under the OSHA HAZWOPER provisions in 29 CFR
1910.120(q)(6)(v). OSHA's emergency response training guidance (29 CFR
1910.120 Appendix E) further describes qualifications for incident
commanders. The OSHA training requirement for incident commanders
should be interpreted as a minimum qualification, not an absolute
measure of expertise.
EPA solicits comment on the specific duties of the QI, how he or
she should be designated and identified, training and recordkeeping
requirements, and other approaches to fulfilling these requirements.
4. CWA Hazardous Substance FRP Components
a. Facility Information
EPA is proposing in Sec. 118.11(b)(1) that a CWA hazardous
substance FRP include facility information including the facility name;
latitude and longitude; street address, including city, state, and zip
code; telephone number, and information regarding the facility's
location described in a manner that would aid a reviewer and a
responder in locating the facility. EPA solicits comment on additional
or alternative data elements that should be included.
b. Owner or Operator Information
EPA is proposing in Sec. 118.11(b)(2) that a plan include the name
and preferred contact method of the owner or operator. EPA solicits
comment on additional or alternative data elements that should be
included.
c. Hazard Evaluation for Worst Case Discharge With Risk-Based Decision
Support System
EPA is proposing requirements for developing a hazard evaluation
for a worst case discharge scenario in Sec. 118.11(b)(3). The intent
of this requirement is to ensure that in the event of a worst case
discharge, owners or operators will have pre-identified the areas in
which adverse impacts to human health and the environment could occur.
Please see Section IV.A.4 of this preamble for a more in-depth
discussion of worst case discharge scenarios and requirements.
Hazard evaluation is a widely used industry practice that allows
facility owners or operators to develop a complete understanding of
potential hazards and the response actions necessary to address these
hazards. Hazard identification and evaluation will assist facility
owners or operators in planning for potential discharges, thereby
reducing the severity of discharge impacts that may occur in the future
by allowing expeditious implementation of preplanned and practiced CWA
hazardous substance-specific response actions designed to mitigate
impacts. The evaluation also may help the operator identify potential
sources of discharges. In addition, hazards to workers and emergency
response personnel health and safety shall be evaluated. The hazard
evaluation should include CWA hazardous substance-specific information
for all CWA hazardous substances with a maximum capacity onsite that
meets or exceeds the threshold quantity, including cautionary response
considerations, health hazards, fire and explosion hazards, chemical
reactivity, hazard classifications, and physical and chemical
properties. This section also requires the facility owner or operator
to examine the facility's operations closely.
Additionally, the hazard evaluation shall address the potential
effects (e.g.,
[[Page 17917]]
to human health, property, or the environment) of a CWA hazardous
substance worst case discharge as per the discussion in Section IV.A.b
of this preamble on the ability to adversely affect public water
systems, ability to cause injury to FWSE, and ability to cause injury
to public receptors. This analysis should examine impacts to
communities with environmental justice concerns, using tools such as
EPA's Environmental Justice Screening and Mapping Tool (EJSCREEN), as
well as consider the potential impacts of climate change, including but
not limited to increased flooding or subsidence, sea level rise, and an
increase in the number and severity of extreme weather events.
Because of the many variables that influence the fate, transport,
and effects of a CWA hazardous substance discharge, these analyses are
designed to provide a macroscopic view of potential impacts. By
identifying worst case discharge planning quantities, endpoints, and
distances to endpoints, diagrams of impacted areas for each CWA
hazardous substance can be developed. Further, within these impact
areas, owners or operators will be able to identify the magnitude of
potential exposure to humans and the environment and factor this
information into the overall response planning and actions.
EPA is proposing to define ``endpoint'' in Sec. 118.2 as the point
at which a worst case discharge no longer has the ability to cause
injury to public receptors or fish, wildlife, and sensitive
environments as in Appendix B or adversely impact a public water system
as in Sec. 118.3(c)(2). Under the RMP rule, the endpoint for airborne
releases of most RMP-regulated toxic substances is its ERPG Level 2,
developed by the American Industrial Hygiene Association (see 61 FR
31668, June 20, 1996).\37\ Endpoints can be obtained or derived from
health guideline values from a recognized authority, to include Federal
or state agencies, professional associations, or scientific studies.
Useful values could be those for oral or incidental digestion that
could characterize waterborne exposure, as found in EPA's oral
reference dose values from IRIS assessments \38\ or ATSDR's MRLs, the
latter of which are defined as an estimate of the daily human exposure
to a hazardous substance that is likely to be without appreciable risk
of adverse non-chance health effects over a specified duration of
exposure.\39\ MRLs are not intended to define clean up or action levels
for ATSDR or other Agencies. An endpoint is used to determine the
perimeter of an area adversely impacted by a CWA hazardous substance
discharge to water. EPA envisions that the analysis will result in a
series of diagrams illustrating the areas potentially impacted, as well
as human and environmental receptors within those areas, as proposed in
Sec. 118.11(b)(3)(i).
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\37\ For substances that did not have an established ERPG-2, the
toxic endpoint was the level of concern (LOC) from EPA's 1987
Technical Guidance for Hazards Analysis, updated where necessary to
reflect new toxicity data. See 61 FR 31668, June 20, 1996.
\38\ See https://iris.epa.gov/AtoZ/%3Flist_type=alpha.
\39\ See https://www.atsdr.cdc.gov/mrls/index.html.
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EPA is also proposing in Sec. 118.11(b)(3)(ii) that plan holders
develop a risk-based decision support process. This requirement
provides a tool to be used by plan holders and responders to ensure
thorough consideration of risk factors that may influence response
activities. This section of the plan would include a description of
processes to identify, evaluate, control, and communicate risks of a
CWA hazardous substance incident. This requirement could be met through
a checklist, decision tree, flow diagram, automated system, or any
other method that contains the required components. At a minimum, the
process must include the following:
--Risk identification, which describes the process which will be used
to determine the extent and route of CWA hazardous substance exposure
to humans and the environment;
--Risk characterization, which describes the process which will be used
to establish relative degrees of risk and prioritizing risks;
--Risk control, which describes the process that will be used to
determine feasible response methods to eliminate or reduce CWA
hazardous substance discharge impacts on human health and the
environment; and
--Risk communication, which describes the process which will be used to
communicate information resulting from the above three bullets to
parties internal and external to response activities.
EPA recognizes that a worst case discharge at a facility could have
cascading effects on co-located or proximate facilities, as well as a
chain reaction of failures. An analysis of this potential is required
in the Oil Pollution Prevention FRP regulation. An example of this type
of incident was the storage tank fire at Intercontinental Terminals
Company, LLC (ITC) in Deer Park, TX, on March 17, 2019. In that
instance, a fire originated in the vicinity of an 80,000-barrel
aboveground atmospheric storage tank that stored naphtha, a flammable
liquid, typically used as a feedstock or blend stock for production of
gasoline. ITC was unable to isolate or stop the release of naphtha
product from the tank, and the fire continued to burn, intensify, and
progressively involved additional tanks in the tank farm.\40\ EPA
solicits comment on including the potential effects of cascading
failures within and between facilities in a hazard analysis and the
feasibility of this type of information sharing between facilities,
outside of the context of local emergency planning and LEPCs or TEPCs.
Additionally, EPA solicits comment on the proposed elements of the
hazard evaluation as well as additional considerations that should be
included, with supporting data and rationale.
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\40\ See Factual Update, Chemical Safety Board, October 30, 2019
https://www.csb.gov/assets/1/20/itc_factual_update_2019-10-30.pdf?16522.
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d. Reportable Discharge History
EPA proposes in Sec. 118.11(b)(4) that facilities report in their
CWA hazardous substance FRP any discharge above the RQ of CWA hazardous
substances with a maximum capacity onsite above the threshold quantity
that reached water in the last five years. Please see Section IV.1.b.iv
of this preamble for a more in-depth discussion on the proposed
requirement. The owner or operator shall report the following
information when available: Date, time, and approximate duration of the
discharge; CWA hazardous substance(s) discharged; estimated quantity
discharged in pounds; the type of discharge event and its source;
weather conditions; onsite impacts; offsite impacts; initiating event;
contributing factors; clean-up actions taken, steps taken to reduce
possibility of recurrence, and description of how the discharge was
detected. EPA solicits comment on the data elements required and the
inclusion of these in the plan, including supporting data and
rationale.
e. Response Personnel and Equipment
EPA proposes in Sec. 118.11(b)(5) that plans include the identity
of private personnel and equipment necessary to remove to the maximum
extent practicable a worst case discharge of a CWA hazardous substance,
and to mitigate or prevent a substantial threat of a worst case
discharge. It is likely that personal protective equipment, monitoring
equipment, and dispersion
[[Page 17918]]
models would be necessary to assess the potential risks and develop
response strategies. Many CWA hazardous substances, once discharged,
cannot be contained or collected. The first priority for these
discharges would be to ensure that exposure to the CWA hazardous
substances is minimized. The proposed equipment requirements are
designed to do this. Additionally, if facilities determine that
equipment is required, owners or operators must include times within
which the equipment and personnel will be onsite in the event of a
worst case discharge. In this action, EPA is not proposing minimum
response times due to the wide variability in appropriate response
actions, resources, and equipment needed to respond to discharges of
CWA hazardous substances.
EPA solicits comment on this approach and on requiring equipment
and personnel onsite in specified time frames, with supporting data and
rationale.
f. Contracts
Under the CWA section 311(j)(5)(D)(iii), an FRP is required to
``identify, and ensure by contract or other means approved by the
President the availability of, private personnel and equipment
necessary to remove to the maximum extent practicable a worst case
discharge . . .'' To address ``by contract or other approved means,''
the Oil Pollution Prevention regulation codified the following
definition of contract or other approved means (Sec. 112.2):
(1) A written contractual agreement with an oil spill removal
organization that identifies and ensures the availability of the
necessary personnel and equipment within appropriate response times;
and/or
(2) A written certification by the owner or operator that the
necessary personnel and equipment resources, owned or operated by the
facility owner or operator, are available to respond to a discharge
within appropriate response times; and/or
(3) Active membership in a local or regional oil spill removal
organization (OSRO) that has identified and ensures adequate access
through such membership to necessary personnel and equipment to respond
to a discharge within appropriate response times in the specified
geographic area; and/or
(4) Any other specific arrangement approved by the RA upon request
of the owner or operator.\41\
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\41\ See 40 CFR 112.2.
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The Oil Pollution Prevention regulation also defined an OSRO (Sec.
112.2) as an entity that provides response resources and includes any
for-profit or not-for-profit contractor, cooperative, or in-house
response resources that have been established in a geographic area to
provide required response resources.\42\ The Oil Pollution Prevention
regulation's fourth definition of contract or other approved means (any
other specific arrangement approved by the RA upon request of the owner
or operator), as above, allows flexibility for all regulated facilities
to propose other means of demonstrating adequate response capability,
subject to approval by the appropriate RA. For oil spills from Oil
Pollution Prevention FRP-regulated facilities, the OPA 90 Conference
Report states that the intent was to put the onus on facilities to
provide personnel and equipment to respond to spills either through in-
house resources or through OSROs.\43\
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\42\ Ibid.
\43\ Legislative History of the Oil Pollution Act of 1990:
Public Law 101-380: 104 Stat. 484: August 18, 1990. in 8 Washington,
DC, Covington & Burling; p. 147.
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EPA is proposing to adopt the Oil Pollution Prevention FRP
regulatory definition of ``ensure by contract or other means'' and CWA
hazardous substance Spill Response Organization (SRO) in Sec. 118.2
and require evidence of contracts or other approved means for ensuring
the availability of such personnel and equipment in Sec. 118.11(b)(6),
while specifically referring to ``response/respond'' rather than
``remove/removal'', since in many cases, it may be infeasible or
impossible to remove a CWA hazardous substance. EPA solicits comment on
this approach and information on such organizations relevant to this
regulation, specifically regional availability of these services,
readiness fees, and general costs, as well as supporting data and
rationale.
g. Notifications
EPA is proposing in Sec. 118.11(b)(7) to require CWA hazardous
substance FRPs to include the identity and contact information of
individuals or organizations to be notified in the event of a discharge
so that immediate communications between the QI and the appropriate
Federal officials and persons providing response personnel and
equipment can be ensured.
The notification list should include: The NRC, the QI, the company
response team, the Federal OSC and/or Regional Response Center, the
local response team (fire department or cooperatives), the fire
marshal, the SERC or TERC, the state police, the LEPC or TEPC,
downstream public water systems, a local television/radio station for
evacuation notification, local hospitals, and any other potential
receptor or interested party who could be impacted by a discharge.
In Sec. 118.11(b)(7), EPA is also proposing a description of the
methods, such as email, telephone, etc., facilities should use to make
notifications, as well as a list of those individuals and organizations
required to be notified. Due to the potential for exposure to public
receptors following a discharge, plans must include notifications to
local public response organizations so they may initiate established
response procedures and discharge notifications.
EPA is proposing in Sec. 118.11(b)(7) that each plan describe how
the responsible party will coordinate with local response organizations
following a CWA hazardous substance discharge. Although the CWA
explicitly requires the availability of private resources to respond to
these discharges, local emergency responders, such as firefighters and
hazardous materials response teams, may respond as well. This
requirement recognizes the benefits gained by ensuring an effective
liaison between the responsible party and these response organizations.
EPA solicits comment on the required notifications and methods,
including supporting data and rationale.
h. Discharge Information
EPA is proposing in Sec. 118.11(b)(8) that a CWA hazardous
substance FRP include a description of information to pass to response
personnel in the event of a discharge, including specifics about the
event, CWA hazardous substance name and quantity discharged, possible
areas and receptors affected, potential routes of transport,
distance(s) to nearby waterways and conveyances, data on the
characteristics of the CWA hazardous substance and other hazardous
substances in proximity, ignition sources, and any other information
that may be helpful to responders and the public. EPA solicits comment
on this plan element, with supporting data and rationale.
i. Personnel Roles and Responsibilities
EPA is proposing in Sec. 118.11(b)(9) that the CWA hazardous
substance facility response plan include the identification and
description of responsibilities and the activities that personnel have
been trained in and are qualified to conduct in the event of a worst
case discharge or substantial threat of such a discharge. EPA solicits
comment on this plan element, with supporting data and rationale.
[[Page 17919]]
j. Response Equipment Information
EPA is proposing in Sec. 118.11(b)(10) that the CWA hazardous
substance facility response plan shall include equipment-specific
information, as dictated by the worst case discharge scenario. This
includes information about the type of equipment at the facility, its
location, response times, and testing requirements.
The CWA requires that worst case discharge response plans, ``. . .
describe the . . . equipment testing . . . at the facility, to be
carried out under the plan to ensure the safety of the vessel or
facility and to mitigate or prevent the discharge, or the substantial
threat of a discharge.'' (33 U.S.C. 1321(j)(5)(D)(iv)). EPA is
proposing in Sec. 118.11(b)(10) that covered facilities for the
proposed program be required to submit information on equipment testing
in accordance with statutory requirements. EPA solicits comment on this
approach to the equipment testing requirements, equipment location
information, types of equipment onsite, response times for equipment,
and other data elements that should be included, with supporting data
and rationale.
k. Evacuation Plans
In Sec. 118.11(b)(11), EPA is proposing requirements for
evacuation plans, which should be coordinated with community evacuation
plans, as available. Owner and operators should develop a facility-wide
evacuation plan in addition to plans to evacuate parts of the facility
that are at a high risk of exposure in the event of a discharge, with
routes shown on a diagram of the facility. Considerations should be
given to: Location of CWA hazardous substances; hazards imposed by
discharged material; discharge flow direction; water currents, tides,
or wave conditions; arrival route of emergency response personnel and
response equipment; limitations on evacuation routes, their capacities,
and potential for those routes to be impacted by adverse weather
events; transportation of injured people to nearest emergency medical
facility; location of alarm/notification systems; the need for a
centralized check-in area for evacuation validation (roll call);
selection of a mitigation command center; and location of shelter at
the facility as an alternative to evacuation. These are important
considerations for CWA hazardous substance response planning because
discharges may behave unpredictably, especially in adverse weather
conditions. Additionally, almost all covered facilities will likely be
required to comply with OSHA's emergency action plan requirements at 29
CFR 1910.38, which include procedures for evacuation plans and exit
route assignments for personnel onsite and overlap with some of the
proposed requirements. EPA solicits comment on this requirement and the
specifics therein, as well as supporting data and rationale.
l. Discharge Detection Systems
EPA is proposing in Sec. 118.11(b)(12) that the facility owner or
operator shall provide a detailed description of the procedures and
equipment used to detect discharges as well as detect and monitor any
hazardous air releases resulting from discharges to navigable water. A
section on CWA hazardous substance discharge detection by personnel and
a discussion of automated discharge detection, if applicable, shall be
included for both regular operations and afterhours operations and be
characterized by CWA hazardous substance. In addition, the facility
owner or operator shall discuss how the reliability of any automated
system will be checked and how frequently the system will be inspected.
EPA solicits comment on this approach and other approaches to discharge
detection systems, including supporting data and rationale.
m. Response Actions
In Sec. 118.11(b)(13), EPA is proposing that facility owners or
operators explain in detail how to implement the facility's response
plan by describing response actions to be carried out under the plan to
ensure the safety of the facility and to mitigate discharges. This
section of the plan must contain prioritized procedures necessary to
protect the facility's personnel and mitigate, control, and remediate a
CWA hazardous substance discharge. This should include personnel
safety, and if applicable, the use of personal protective equipment;
facility personnel responsibilities by job title; facility personnel
actions in the event of an incident; facility personnel assigned to
gather information that must be provided to response personnel; and
facility responsibilities to mitigate a CWA hazardous substance
incident. If facility personnel will sample or monitor air or water,
then include personnel responsibilities for recordkeeping and sampling
of CWA hazardous substances involved in an incident, procedures for
sharing real time data with response personnel and the public, personal
protective equipment requirements, and safety procedures during the
sampling or monitoring operation. EPA solicits comment on this approach
and other approaches to enumerating and detailing response actions to
be carried out, with supporting data and rationale.
n. Disposal Plans
EPA is proposing in Sec. 118.11(b)(14) that facility owners or
operators must describe how and where the facility intends to recover,
reuse, decontaminate, treat, and/or dispose of materials after a
discharge has taken place and include plans for temporary storage of
recovered materials. The appropriate permits required to manage
recovered materials according to local, state, and Federal requirements
must be addressed.\44\ Materials that must be accounted for in the
disposal plan, as appropriate, include recovered product; contaminated
soil and water; contaminated equipment and materials, including drums,
tank parts, valves, and shovels; personal protective equipment;
decontamination solutions; adsorbents; and spent chemicals. These plans
must be prepared in accordance with Federal (e.g., RCRA), state, and
local regulations, where applicable. For example, a facility could
follow the EPA publications A Guidance Manual: Waste Analysis at
Facilities that Generate, Treat, Store, and Dispose of Hazardous Wastes
\45\ and Pre-Incident All-Hazards Waste Management Plan Guidelines:
Four-Step Waste Management Planning Process.\46\ EPA solicits comment
on this approach and other approaches to disposal plans for CWA
hazardous substances with supporting data and rationale.
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\44\ See EPA requirements at https://www.epa.gov/hwpermitting/what-specific-areas-must-hazardous-waste-permit-address and a model
RCRA permit https://www.epa.gov/sites/default/files/2016-03/documents/rcra-model-1988.pdf
\45\ U.S. Environmental Protection Agency (2015). Waste Analysis
at Facilities that Generate, Treat, Store, and Dispose of Hazardous
Wastes--Final. EPA 530-R-12-001. https://www.epa.gov/hwgenerators/guidance-manual-waste-analysis-facilities-generate-treat-store-and-dispose-hazardous.
\46\ U.S. Environmental Protection Agency. Pre-incident All-
hazards Waste Management Plan Guidelines: Four-step Waste Management
Planning Process. EPA 530-F-19-006. https://www.epa.gov/homeland-security-waste/pre-incident-all-hazards-waste-management-plan-guidelines-four-step-waste.
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o. Containment Measures
EPA proposes in Sec. 118.11(b)(15) that a plan should include
measures to provide adequate containment and drainage of discharged CWA
hazardous substances to limit the threat of harm to human health and
the environment. This section shall describe how to contain and control
a discharge through drainage, including the available volume of
containment, the route of
[[Page 17920]]
drainage from storage and transfer areas, the construction materials
used in drainage troughs, the type and number of valves and separators
used in the drainage system, sump pump capacities, the containment
capacity of weirs and booms that might be used and their locations, and
other cleanup materials. EPA solicits comment on this approach and
other approaches to provide adequate containment and draining of
discharged CWA hazardous substances with supporting data and rationale.
p. Training Procedures
The CWA requires that response plans describe training for
responding personnel (33 U.S.C. 1321(j)(5)(D)(iv)). In this rulemaking,
EPA is proposing in Sec. 118.13(b) to reference OSHA's 29 CFR 1910.120
training specific to hazardous substances, while also ensuring that
training is conducted not only for facility personnel, but for private
personnel, casual laborers, and volunteer responders. EPA is proposing
additional considerations for employee training, given the wide range
of CWA hazardous substances covered by this proposed regulation and the
potential exposure of employees, volunteer responders, and casual
laborers to these CWA hazardous substances during a response.
Additionally, OSHA's 29 CFR 1910.120 already applies to emergency
response operations for releases of, or substantial threats of release
of, hazardous substances without regard to the location of the hazard
(Sec. 1910.120(a)(1)(v)). Therefore, facilities should already be
complying with these regulations in responding to worst case discharges
of CWA hazardous substances. Section (q) of 1910.120 is applicable to
this proposed rulemaking, and includes specific requirements based on
the role of the responder (Incident Commander, etc.), annual refresher
training, training on implementing response plans and understanding of
the CWA hazardous substances involved, knowledge of the incident
command system, and use of personal protective equipment. Requiring
that training is conducted in compliance with 29 CFR 1910.120 will
further minimize exposures that are hazardous to the health of response
personnel.
Finally, EPA is proposing in Sec. 118.13(b)(4) that facilities
keep logs for five years following training. Given the ease of storing
records electronically, EPA does not believe this poses a significant
burden on facilities. Access to training logs is necessary for
conducting compliance inspections with the training portion of response
plans proposed in this rulemaking. EPA solicits comment on training and
documentation requirements with supporting data and rationale.
q. Drills and Exercises
EPA is proposing requirements to develop a drill and exercise
program in Sec. 118.13(c). This section references PREP, which is a
joint industry/government effort to establish recognized national
guidelines for conducting drills/exercises to meet the requirements in
section 311(j)(5) of the CWA and existing exercise requirements for oil
spill response plan exercises specified by agency-specific
regulations.\47\ A program that follows PREP will be deemed
satisfactory. Additionally, if a facility has a discharge, they may
complete an after-action report and adjust operations accordingly,
which can count for this requirement.
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\47\ See the 2016.1 PREP Guidelines, effective October 1, 2018,
at https://homeport.uscg.mil/Lists/Content/DispForm.aspx?ID=30271&Source=/Lists/Content/DispForm.aspx?ID=30271.
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Drills and exercises are designed to periodically test the ability
of response personnel to ensure the safety of the facility and to
mitigate or prevent discharges of CWA hazardous substances. A drill and
exercise program comprises facility drills and exercises, including
tabletop and field exercises, both announced and unannounced, as well
as participation in larger area drills and exercises and evaluation of
these drills and exercises.
Field exercises should include tests of procedures to notify the
public and the appropriate Federal, state, and local emergency response
agencies about a worst case discharge; tests of procedures and measures
for emergency response actions including evacuations and medical
treatment; tests of communications systems; mobilization of facility
emergency response personnel, including contractors, as appropriate;
coordination with local emergency responders; emergency response
equipment deployment; and any other action identified in the response
plan, as appropriate.
Tabletop exercises should include discussions of procedures to
notify the public and the appropriate Federal, state, tribal, and local
emergency response agencies; procedures and measures for emergency
response including evacuations and medical treatment; identification of
facility emergency response personnel and/or contractors and their
responsibilities; coordination with local emergency responders;
procedures for emergency response equipment deployment; and any other
action identified in the response plan, as appropriate.
The purpose of area exercises is to have the entire response
community practice discharge response actions in a particular area. An
area is defined as that geographic area for which a separate and
distinct ACP has been prepared. The response community is comprised of
the Federal, state, and local government and industry, and as
appropriate, tribal entities.
EPA solicits comment on the appropriate frequency for drills and
exercises, the types of drills and exercises that should be required,
evaluation reports, and the level of coordination with LEPCs or TEPCs
and other response organizations, with supporting data and rationale.
r. Self-Inspection
In Sec. 118.11(b)(18), EPA is proposing that owners and operators
include written procedures and records of inspections. Facility self-
inspection requires two-steps: (1) A checklist of things to inspect;
and (2) a method of recording the actual inspection and its findings.
An owner or operator should note the date of each inspection and keep
CWA hazardous substance FRP records for five years. EPA solicits
comment on this approach and alternative methods for self-inspection
and self-inspection recordkeeping with supporting data and rationale.
s. Alternative Approaches
EPA considered, but did not propose, to require that plans describe
the organizational structure that will be used to manage response
operations. This structure could outline the roles and responsibilities
of the specific functional areas contained in the National Interagency
Incident Management System (NIIMS) Incident Command System (ICS).
EPA also considered proposing different requirements for non-
responding versus responding facilities. The RMP regulations (40 CFR
68.90) make a distinction between responding (facilities at which
employees will respond to accidental releases of regulated substances)
and non-responding facilities (facilities at which employees will not
respond to accidental releases of regulated substances, provided the
owner or operator coordinates with local response agencies to ensure
that they will be prepared to respond to an emergency at the facility).
Responding facilities must comply with the emergency response plan
elements of Sec. 68.95 while non-responding facilities are not
required to, provided they meet certain criteria in
[[Page 17921]]
Sec. 68.90(b). While this distinction is appropriate for the RMP
program, the CWA stipulates that a facility that has the potential to
cause substantial harm in the event of a worst case discharge is
required to develop a response plan. For this CWA proposed rulemaking,
non-responding facilities would be required to comply with all the
planning requirements. EPA is proposing in Sec. 118.11(a)(3) to
require the facility owner or operator to identify the resources to be
provided by the facility as per CWA section 311(j)(5)(D)(iii).
The Oil Pollution Prevention FRP regulation specifies the amount of
time in which facilities must have resources onsite based on the size
of the spill, type of oil, and other hazard evaluation criteria. Due to
the variability in fate and transport of CWA hazardous substances and
their individual response equipment and action needs, EPA is not
including similar requirements in this proposed action.
Additionally, EPA considered requiring an Emergency Response Action
Plan (ERAP), similar to the provision under the Oil Pollution
Prevention FRP regulations at 40 CFR 112.20(h)(1). The ERAP's purpose
is to provide a summary of steps for spill source stabilization,
including immediate actions by the facility incident management team,
such as internal and external notifications and initiation of oil spill
preparedness and evacuation procedures, to be kept in the front of the
oil FRP or in a separate binder to accompany the full oil FRP. If
owners or operators have already prepared a federal or state response
plan that addresses the oil FRP requirements and it is cross-
referenced, they need not prepare a separate plan (58 FR 8837; February
17, 1993). Such a requirement in this action could provide an important
compilation of critical response information for facility personnel and
responders, especially if required on a site-specific basis, where one
CWA hazardous substance ERAP would be required for each site, rather
than allowing multi-facility CWA hazardous substance ERAPs. Multi-
facility CWA hazardous substance ERAPs could ease the burden of
preparing individual CWA hazardous substance ERAPs but may not be
practicable in terms of accessing time-sensitive information across a
multi-facility plan in an emergency situation. EPA anticipates that CWA
hazardous substance ERAPs would facilitate owner or operator response
to incidents by including condensed versions of select sections from
the overall response plan proposed in this action. EPA has found ERAPs
to be helpful to planholders responding to oil spills.
EPA solicits comment on these alternative approaches and supporting
data and rationale.
C. Implementation and Enforcement
1. Office Delegation
EPA is proposing in Sec. 118.4 that facility owners and operators
submit plans to their respective RAs, following the regional delegation
model used in the Oil Pollution Prevention regulation. As is currently
the practice, and has been for over 30 years, EPA Regions administer
the Oil Pollution Prevention FRP program with guidance from EPA
Headquarters. This creates effective and efficient localized knowledge
and field experience enabling the regions to interact with the
regulated community. This is especially true for the potential to
require additional facilities to be regulated by the determination of
the RA. Additionally, EPA Regional Offices can further delegate to OSCs
or other staff as needed. EPA Regional staff have extensive knowledge
of the scope of the localized variables for the areas, but EPA
understands that this approach will increase the workload in the
regions and may require additional staff and resources.
2. Compliance Dates
EPA is proposing in Sec. 118.4(a)(1) that initially regulated
facilities that meet the criteria in Sec. 118.3 or are notified by the
RA that they meet the criteria for substantial harm found in Sec.
118.5 must prepare and submit a CWA hazardous substance FRP within 12
months. Additionally, EPA is proposing in Sec. 118.4(a)(2) that newly
regulated facilities (facilities in operation after the effective date
of the Final Rule and that meet the criteria in Sec. 118.3 or are
notified by the RA that they meet the substantial harm criteria in
Sec. 118.5) submit plans within six months, but no sooner than 12
months after the effective date of the final rule. EPA is proposing in
Sec. 118.4(a)(3) that newly constructed facilities (facilities that
come into existence after the effective date of the final rule) that
meet the applicability criteria must prepare and submit a response plan
in accordance with the final rule prior to the start of operations, but
no sooner than 12 months after the effective date of the final rule.
EPA is proposing in Sec. 118.4(a)(4) that plans be updated and in
place prior to the implementation of planned change in design,
construction, operation, or maintenance at the facility that results in
the facility meeting the criteria in Sec. 118.3, but no sooner than 12
months after the effective date of the final rule. An unplanned event
or RA determination will require response plan submission within six
months, but no sooner than 12 months after the effective date of the
final rule, as proposed in Sec. 118.4(a)(4). EPA is proposing in Sec.
118.4(b)(1) that owner or operator of a facility shall revise and
resubmit their plan within 60 days of each facility change, including
material, capacity, spill response organization capability, discharge
mitigation and response equipment or emergency response procedures, or
other changes that may affect the response to a worst case discharge.
Materially change means introduction of a new process, new equipment,
or regulated substance, an alteration of process chemistry that results
in any change to safe operating limits, or other alteration that
introduces a new hazard or affects the facility's potential for a
discharge.
These proposed timelines are roughly based on OPA 90 transition
provisions, which directed EPA (as delegated by the President in E.O.
12777) to issue regulations for oil worst case discharge response plans
(oil FRPs) under section 311(j)(5) of the CWA within 24 months.
Facilities could submit the Oil Pollution Prevention FRPs beginning 30
months from enactment (February 18, 1993) and were required to be
submitted by 36 months of enactment (August 18, 1993) for facility
compliance of onshore facilities pursuant to CWA section 311(j)(5)(E).
The Agency set forth existing and new facility compliance requirements
in the Oil Pollution Prevention FRP regulations that plans be submitted
within six months from the time of discovery or notification that a
facility could cause ``substantial harm,'' and a material change
requirement for owner or operator plan resubmittal within 60 days of
each material change in facility or plan that could affect the adequacy
of a facility's response capabilities, such as the ability to respond
to a worst case discharge. CWA section 311(j)(5)(G) allows the owner or
operator of a facility to seek Federal authorization to operate for up
to two years after the plan has been submitted for approval if the
owner or operator has certified that he or she has ensured by contract
or other federally approved means the availability of private personnel
and equipment necessary to respond, to the maximum extent practicable,
to a worst case discharge or substantial threat of such a discharge.
EPA solicits comment on the proposed timelines and alternatives,
with supporting data and rationale.
[[Page 17922]]
3. Confidential Business Information
EPA is proposing in Sec. 118.4(d) that a facility owner or
operator may make a claim of CBI if he or she is able to show that the
information meets the substantive criteria set forth in 40 CFR 2.302.
These criteria generally require that the data be commercial or
financial in nature, that they not be available to the public through
other means, that an owner or operator take appropriate steps to
prevent disclosure, and that disclosure of the data would be likely to
cause substantial harm to a competitive position. Review of any CBI
claims will be handled as provided for in 40 CFR part 2. However, EPA
is proposing in 40 CFR part 118 that certain CWA hazardous substance
FRP data elements may not be claimed as CBI because they do not convey
any business sensitive information. EPA is proposing specific
procedures for submission of CBI claims for CWA hazardous substance
FRPs in Sec. 118.4(d)(3). This approach will ensure that EPA and the
public have access to critical emergency planning information, while
preserving industry competitiveness. EPA solicits comment on this
approach and alternatives.
4. Appeals Process
EPA is proposing in Sec. 118.6 to allow owners or operators to
participate in and appeal the RA's determination of substantial harm or
significant and substantial harm, and the disapproval of a CWA
hazardous substance FRP. EPA recognizes the importance of allowing
facility owners or operators to present relevant information and
therefore proposes a two-part appeals process. The first stage allows a
facility owner or operator to submit to the RA a request for
reconsideration that includes information and data to support the
request. The RA shall evaluate the submitted information and reach a
decision on the facility's risk classification or the status of plan
approval (including whether changes to a facility's worst case
discharge planning quantity are necessary for approval) as soon as
practicable. Once the RA renders a decision, the facility owner or
operator must submit a plan within 60 days. EPA expects that the
request for reconsideration process will be the primary mechanism to
address disputes over decisions. However, a follow-up process will also
be available for appeal of the RA's determination to the Administrator
of EPA. EPA solicits comment on the proposed process and alternative
approaches.
5. Stakeholder Petitions
EPA is proposing a petition process to allow the public and other
government agencies the opportunity to provide input on a voluntary
basis on CWA hazardous substance facilities that should be required to
submit an FRP to EPA in Sec. 118.7. EPA concluded that the
availability of the petition process is important for public
involvement in the designation of substantial harm facilities and could
be an important mechanism for communities with environmental justice
concerns and those impacted by climate change to participate in the CWA
hazardous substance FRP process. The Agency judged that information
provided by the public and other government agencies will assist,
rather than burden, the RA. This proposed petition process is similar
to one in the Oil Pollution Prevention FRP Final Rule (59 FR 34070,
July 1, 1994), where any member of the public or representative from a
Federal, State, or local agency may petition the Agency with
information that a facility meets the substantial harm criteria and
thus should be required to prepare a response plan (see 40 CFR
112.20(f)(2)(ii)). Under this provision, petitions are submitted to the
RA, and the RA considers and responds to the petition as soon as
practicable. The petition process was implemented to allow the
opportunity for public involvement. In addition, the Agency believed
that information provided by the public and other government agencies
would assist the RA.
It is not necessary for petitioners to determine quantitatively
whether the facility meets one of the specific applicability or
substantial harm criteria, but rather, petitioners should provide a
reasonable basis for asserting that the facility may pose a risk of
substantial harm to the environment. A petition that fails to document
the reasons why a facility should be classified as a facility that has
the potential to cause substantial harm in the event of a worst case
discharge (e.g., the facility is near a source water supply or a
priority sensitive environment listed in an ACP, the facility has a
history of frequent discharges or poor maintenance, etc.) will not be
considered by the RA. However, petitioners are not required to provide
detailed analyses and calculations. Other avenues of participation for
the public in the response planning process include involvement in the
ACP development process or participation in the LEPC or TEPC.
EPA solicits comment on the proposed petition process and
alternatives, with supporting data and rationale.
6. Consistency With the NCP
Section 311(j)(5)(D) of the CWA states that Facility Response Plans
must be consistent with the NCP and ACPs. As such, in Sec. Sec.
300.185, 300.211, and 300.411, EPA is proposing minor changes to 40 CFR
part 300 to ensure uniformity.
In Sec. Sec. 300.185 and 300.211, EPA is proposing to add
references to proposed 40 CFR part 118. EPA is proposing to add Sec.
300.411 to detail requirements for responses to CWA hazardous substance
worst case discharges, to mirror the requirements for oil worst case
discharges in Sec. 300.324, including OSC responsibilities to notify
the National Strike Force Coordination Center, require the FRP be
initiated, implement ACP worst case discharge plans, take response
actions, and coordinate private and public equipment for response.
D. Additional Considerations
1. Communities With Environmental Justice Concerns
EPA recognizes the unique challenges faced by communities with
environmental justice concerns. Evidence of the disproportionate co-
location of historically marginalized populations and hazardous waste
was demonstrated over 30 years ago \48\ with subsequent environmental
justice literature establishing that industrial facilities and
aboveground storage tanks are disproportionately located in communities
with environmental justice concerns,\49\ and similarly, our co-location
assessment confirms, and likely underestimates, historical trends.
Please see the section 8.7 of the RIA for further description of our
analysis of environmental justice impacts. However, the impacts of
worst-case discharges of CWA hazardous substances on these communities
are also influenced by the unique circumstances of a discharge and a
facility's positioning up or downstream from public water systems that
often serve large and diverse communities. This proposed rule would
protect human health and the environment by requiring facilities to
prepare and
[[Page 17923]]
respond to worse case discharges of CWA hazardous substances.
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\48\ Commission for Racial Justice. (1987). Toxic Wastes and
Race In the United States: A National Report on the Racial and
Socio-Economic Characteristics of Communities with Hazardous Waste
Sites. United Church of Christ. https://www.nrc.gov/docs/ML1310/ML13109A339.pdf.
\49\ Ringquist, E.J. (2005). Assessing evidence of environmental
inequities: A meta-analysis. Journal of Policy Analysis and
Management, 24(2), 223-247. https://doi.org/10.1002/pam.20088.
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Additionally, EPA is proposing that RAs have wide authority to
require CWA hazardous substance FRPs for facilities located in
communities with environmental justice concerns, as well as those that
could impact such communities with a worst case discharge in Sec.
118.5. EPA is also proposing that any stakeholder (e.g., member of the
public, organization, or local, state, Tribal, or Federal government)
can petition EPA to require that a specific facility prepare and submit
a CWA hazardous substance FRP in Sec. 118.7. Communities with
environmental justice concerns are also considered in the hazard
evaluation as discussed in Section IV.C.2.d.iii of this preamble.
EPA considered using impacts to communities with environmental
justice concerns as an applicability criterion to determine whether
such facilities have the potential to cause substantial harm in the
event of a worst case discharge and is interested in possible
approaches, methodologies, and data sources to do so. EPA solicits
comment on alternate ways to prioritize the needs of communities with
environmental justice concerns and is open to other approaches to
meaningfully address risks from lack of planning to respond to worst
case discharges of CWA hazardous substances among these communities.
Please see section V.J. of this preamble for a discussion of E.O.
12898: Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations.
2. Climate Change
Climate change will have a significant impact on CWA hazardous
substance facilities, including through increases in both the number
and the severity of extreme weather events. Additionally, the rise in
sea levels occurring along the southern and eastern coasts of the
United States may further exacerbate the effects of these weather
events. Climate change is also contributing to subsidence, which is the
gradual settling or sudden sinking of land surface due to removal or
displacement of subsurface resources. In the United States, the
principal cause of subsidence is the over-extraction of ground water.
With increases in the number and severity of droughts, population, and
economic growth, subsidence is a critical aspect to consider in the
future.
This proposed regulation is inherently a climate change adaptation
regulation in that the statute requires planning for worst case
discharges in adverse weather conditions. Additionally, our analysis
shows that 90 percent of facilities estimated to meet or exceed the CWA
hazardous substance maximum capacity onsite threshold quantity are
within one-half mile of navigable water, and therefore are often
located in floodplains. The definition of a worse case discharge is the
largest foreseeable discharge in adverse weather conditions, so
including flood plains and tidal zones as a substantial harm criterion
may be duplicative and unnecessary, since facility owners and operators
should already be examining these metrics in their worst case discharge
scenarios for determining planning distance. Please see Section
IV.A.2.e.i of this preamble for more discussion on climate change risk
considerations in applicability.
A hazard evaluation is a required element for the response plan for
worst case discharges. Hazard evaluation will, by its nature, include
hazards posed by climate change, increased flooding, temperature
changes, etc. Additionally, the hazard analysis is intended to address
climate change adaptation and resilience in facility emergency response
planning for worst case discharges of CWA hazardous substances.
EPA solicits comment on methodologies to take climate change into
account in both applicability criteria as well as response plan
requirements.
3. Facility Density
EPA recognizes the increased risk of worst case discharges in areas
with a high density of CWA hazardous substance facilities. EPA
considered additional requirements for facilities in areas with high
facility density, as well as including co-location of facilities with
less than the threshold quantity of CWA hazardous onsite but proximate
to other facilities which, in the aggregate, meet the CWA hazardous
substance threshold quantity as an applicability criterion. EPA
solicits comment on these approaches as well as the appropriate
proximity metrics, quantities, and methods for determining shared risk
amongst facilities.
V. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under E.O. 12866 (58 FR 51735; October 4, 1993), this action is a
``significant regulatory action'' because it is likely to raise novel
legal or policy issues under section 3(f)(4). Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under E.O. 12866 and E.O. 13563 (76 FR 3821; January 21, 2011);
any changes made in response to OMB recommendations have been
documented in the docket for this action (EPA-HQ-OLEM-2021-0585). EPA
prepared an economic analysis of the potential costs and benefits
associated with regulatory options considered for this action. This
analysis, ``Regulatory Impact Analysis: Clean Water Act Clean Water Act
Hazardous Substance Worst Case Discharge Planning Regulations,'' is
available in the docket.
The RIA discusses the potential costs and benefits associated with
this proposed action. As presented in Section 6 of that analysis, EPA
estimated the final rule will result in annualized costs of $27.6 to
$28.4 million per year, at three percent and seven percent discount
rates, respectively. The benefits of the proposed action are assessed
qualitatively and include a wide diversity of potential benefit
mechanisms, such as reductions in: Impacts to public water systems and
other waterways used for recreational and commercial purposes; impacts
to the ecosystem and environment; impacts to human health; and other
socioeconomic impacts driven by business disruption, evacuations, and
other elements of emergency response.
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule have
been submitted for approval to the OMB under the PRA. The Information
Collection Request (ICR) document that the EPA prepared has been
assigned EPA ICR number 2710.01. You can find a copy of the ICR in the
docket for this rule, and it is briefly summarized here.
All information submitted to the agency in response to the ICR will
be managed in accordance with applicable laws and EPA's regulations
governing treatment of confidential business information at 40 CFR part
2, subpart B. Any information determined to constitute a trade secret
will be protected under 18 U.S.C. 1905. The facility plans required
under the proposed revisions to section 311(j)(5)
[[Page 17924]]
of the CWA are submitted to the EPA for compliance review and approval.
The information would also likely be shared with state and local
officials who could use the information to develop or modify emergency
response plans for their communities. The burden to regulated
facilities is estimated in terms of the time (in hours) spent by
facility personnel to review the proposed regulation and prepare a
response plan and maintain the plan on an annual basis. Additional
detail is provided in the ICR for the proposed rule referenced above.
Respondents/affected entities: The industries that are likely to be
affected by the requirements in the proposed regulation fall into
numerous NAICS categories. About 72 percent of facilities are in the
following major NAICS groups at the three-digit level that may be
subject to the proposed regulation: Utilities (221), Chemical
Manufacturing (325), and Merchant Wholesalers, Nondurable Goods (424).
Other facilities may be covered by these regulations in other NAICS
categories. A complete list of NAICS categories with covered facilities
is included in the ICR accompanying the proposed rule.
Respondent's obligation to respond: Mandatory (40 CFR parts 118 and
300).
Estimated number of respondents: 1,659 initially, plus 25 new
respondents annually.
Frequency of response: One-time response required; burden also
includes annual maintenance of the plan.
Total estimated burden: 330,740 hours (average per year for first
three years). Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: $52,434,008, (average per year for first
three years), includes $15,188,371 annual operations and maintenance
costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden to the EPA using the docket identified
at the beginning of this rule. The EPA will respond to any ICR-related
comments in the final rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. OMB must receive
comments no later than May 27, 2022.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
small entities subject to the requirements of this action includes
small businesses. The Agency has determined that among the 421
potentially regulated small entities, 138 small entities may experience
an impact between one and three percent of revenues. These entities are
in three industries: Animal Food Manufacturing, Sawmills and Wood
Preservation, and Marine Cargo Handling. The Agency also estimated, and
that five small entities in the Electric Power Generation industry may
experience an impact greater than three percent of revenues (or about
1.3 percent of all small entities). Details of this analysis are
presented in Section 9.3 of the proposed rule RIA, available in the
docket.
In summary, EPA has prepared a small entity impact screening
analysis to assess whether the proposed action would have ``a
significant impact on a substantial number of small entities.'' This
analysis involved three main steps:
1. Identifying the subset of small entities potentially affected by
the proposed action based on Small Business Administration (SBA) size
criteria for each NAICS industry;
2. Assessing the potential impact of the rule on those small
entities by comparing the entity-level compliance cost to entity-level
revenue (i.e., applying a cost-to-revenue test). EPA used threshold
compliance costs of one percent or three percent of revenue to
categorize the degree of significance of the economic impacts; and,
3. Based on the results of the threshold test, assessing (1)
magnitude of economic impact that may be experienced by regulated small
entities; (2) total number of regulated small entities that may
experience the economic impact; and, (3) percentage of regulated small
entities that may experience the economic impact, in order to make a
SISNOSE determination.
Among the 1,659 facilities estimated to be required to develop
response plans, EPA estimated that 669 of these facilities are owned by
421 small entities. EPA's cost-to-revenue test estimated that 8 small
entities would have costs between one and three percent of revenues (or
about 2 percent of all small entities), and 5 entities would have costs
exceeding three percent of revenues (or about 1 percent of all small
entities). Based on the results, EPA concluded that the proposed
action's requirements will not have a significant impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate of $100 million
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. Under UMRA Section
202, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that might result in expenditures by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million (adjusted annually for inflation) or more in any one year.
Based on the cost estimates detailed previously, EPA determined that
compliance costs in any given year will be below the threshold set in
UMRA. This proposed action is also not subject to the requirements of
section 203 of UMRA because it does not significantly or uniquely
affect small governments.
EPA determined that the proposed local coordination requirements
build upon existing requirements under EPCRA section 303, and thus do
not impose an unfunded mandated upon LEPCs or public water systems that
would coordinate with regulated facilities. LEPCs are required to
develop community emergency response plans under EPCRA section 303, and
this proposed rule provisions are intended to ensure that facility
representatives coordinate with LEPC and local emergency response
officials in developing those plans. Water systems are similarly
required under the AWIA to develop or update risk assessments and
emergency response plans. Furthermore, EPA provided flexibility in this
proposed rule to allow LEPC and other local officials to participate as
their schedules allow. For example, EPA is proposing that when
appropriate, facility owners or operators coordinate with local public
emergency response officials and invite them to participate in drills
and exercises. The proposed rule does not require participation in
drills and exercises.
E. Executive Order 13132: Federalism
This action does not have Federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and
[[Page 17925]]
responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in E.O.
13175 (65 FR 67249, November 6, 2000). EPA mapped the location of the
available sample of 661 in-scope facilities present in EPA's Tier II
data against EPA's geographic boundaries for tribal lands and did not
identify any facilities located on tribal lands. EPA notes that these
data capture only a portion of potentially regulated facilities, and do
not include some states with relatively higher proportions of Tribal
lands, such as Oklahoma. In addition, EPA lacks information on the
location of water intakes associated with facilities, which is a
further uncertain potential source of tribal impacts. Thus, Executive
Order 13175 does not apply to this action.
EPA will consult with Tribal officials as it develops this
regulation to permit them to have meaningful and timely input into its
development. Consultation will include conference calls, webinars, and
meetings with interested tribal representatives to ensure that their
concerns are addressed before the rule is finalized. In the spirit of
E.O. 13175 and consistent with EPA policy to promote communications
between EPA and Tribal governments, EPA specifically solicits comment
on this proposed rule from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to E.O. 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in E.O.
12866 (58 FR 51735, October 4, 1993), and because the EPA does not
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children. This action's
health and risk assessments are contained in the RIA for this proposed
rule, available in the docket.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. The proposed rule does not directly
regulate energy production or consumption. Adding CWA hazardous
substance FRP requirements is not expected to impact energy production
or distribution.
I. National Technology Transfer and Advancement Act (NTTAA)
This proposed action does not involve technical standards and is
therefore not subject to the requirements contained in NTTAA section
12(d), 15 U.S.C. 272.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA concluded that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations and low-income populations and/or Indigenous peoples, as
specified in E.O. 12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is contained in section 8.7 of
the RIA. Worst case discharges of hazardous substances from facilities
regulated by this action would likely pose disproportionate risks to
minority and low-income populations. EPA has concluded that the
regulatory requirements will advance fair treatment of those
populations, by reducing the disproportionate damages that worst case
discharges might otherwise inflict on underserved and overburdened
communities. To further ensure that the regulation is addressing needs
of those specific communities, this regulation would give authority to
RAs to regulate facilities which potentially affect communities of
environmental justice concern if they are otherwise not captured by the
proposed applicability criteria.
The Agency's environmental justice screening tool, EJSCREEN, was
developed to combine environmental and demographic indicators to screen
communities for those at potentially greater risk of environmental
exposures. Here, EPA used EJSCREEN to combine information on the
universe of facilities with the potential to discharge into navigable
waters given their proximity. The Agency quantified facilities with
threshold quantities of CWA hazardous substances within a one-half mile
of navigable water (n=661), using available Tier II data from 17
states. Tier II data reporting is required under section 312 of EPCRA.
Tier II data is meant to provide State, tribal, and local officials,
and the public with specific information on potential hazards including
locations and amounts of hazardous chemicals present at a facility.
Tier II reporting includes all CWA hazardous substances. For this
analysis, EPA used Tier II data from the Clean Water Act Hazardous
Substances Discharge Prevention Rulemaking, Docket ID EPA-HQ-OLEM-2018-
0024.
This environmental justice analysis shows that minority and low-
income populations are more likely to live in proximity to those
facilities (and thus are at greater risk) than other populations. EPA
found 46 percent of individuals in proximity (defined as living within
a one-half mile radius) to potentially regulated facilities are low-
income; the average in the United States population is 38 percent. Low-
income is defined here as less than twice the Census Bureau's poverty
threshold. EPA also found that 52 percent of people in proximity to
potentially regulated facilities are racial and ethnic minorities,
including any designation except for ``Non-Hispanic, White,'' which
includes those identifying as Hispanic white or as multiracial white.
The average in the United States population (overall) is 37 percent.
This is likely an underestimate given that the 17 states do not include
Texas and Louisiana: Two states which have known communities with
environmental justice concerns.
List of Subjects
40 CFR Part 118
Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 300
Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, Title 40, chapter I, of the
Code of Federal Regulations is proposed to be amended as follows:
0
1. Add Part 118 to subchapter D to read as follows:
Subchapter D Water Programs
PART 118--CLEAN WATER ACT HAZARDOUS SUBSTANCES WORST CASE DISCHARGE
PLANNING REGULATIONS
Sec.
118.1 Purpose.
118.2 Definitions.
118.3 Applicability.
118.4 General requirements.
118.5 Regional Administrator determination of substantial harm and
significant and substantial harm.
118.6 Appeals process.
118.7 Petitions.
[[Page 17926]]
118.8 Exclusions and exemptions.
118.9 Mixtures.
118.10 Worst case discharges.
118.11 Facility response plan requirements.
118.12 Coordination activities.
118.13 Facility response training and drills/exercises.
Appendix A to Part 118: Certification Form
Appendix B to Part 118: Toxicity endpoints for calculating planning
distance for fish, wildlife and sensitive environments and public
receptors.
Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735,
superseded by Executive Order 12777, 56 FR 54757.
Sec. 118.1 Purpose.
This part establishes Clean Water Act (CWA) hazardous substance
facility response plan requirements for the owner or operator of any
non-transportation-related onshore facility that, because of its
location, could reasonably be expected to cause substantial harm to the
environment by discharging CWA hazardous substances into or on the
navigable waters, adjoining shorelines, or the exclusive economic zone.
Sec. 118.2 Definitions.
For the purposes of this part:
Adverse weather means weather conditions that make it difficult for
response equipment and personnel to clean up or respond to discharged
CWA hazardous substances, accounting for the potential for increased
and more severe extreme weather events and other impacts due to climate
change, and that must be considered when identifying response systems
and equipment in a response plan for the applicable operating
environment.
Article means a manufactured item that is formed to a specific
shape or design during manufacture, has end use functions dependent in
whole or in part upon the shape or design during end use, and does not
release or otherwise result in exposure to a CWA hazardous substance
under normal conditions of processing and use.
Container means any device or portable device in which a CWA
hazardous substance is processed, stored, used, transported, treated,
disposed of, or otherwise handled.
Contract or other approved means is defined as:
(1) A written contractual agreement with a spill response
organization that identifies and ensures the availability of the
necessary personnel and equipment within appropriate response times;
(2) A written certification by the owner or operator that the
necessary personnel and equipment resources, owned or operated by the
facility owner or operator, are available to respond to a discharge
within appropriate response times;
(3) Active membership in a local or regional spill response
organization that has identified and ensures adequate access through
such membership to necessary personnel and equipment to respond to a
discharge within appropriate response times in the specified geographic
area; and/or
(4) Any other specific arrangement approved by the Regional
Administrator upon request of the owner or operator.
CWA Hazardous Substance means any hazardous substance designated in
40 CFR part 116.
Discharge includes, but is not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying, or dumping of a CWA hazardous
substance, but excludes: discharges in compliance with a permit under
section 402 of the CWA; discharges resulting from circumstances
identified, reviewed, and made a part of the public record with respect
to a permit issued or modified under section 402 of the CWA, and
subject to a condition in such permit; and continuous or anticipated
intermittent discharges from a point source, identified in a permit or
permit application under section 402 of the CWA, that are caused by
events occurring within the scope of relevant operating or treatment
systems.
Distance to the endpoint is the distance a CWA hazardous substance
will travel before dissipating to the point that a worst case discharge
will no longer cause injury to public receptors or fish, wildlife, and
sensitive environments as in Appendix B or adversely impact a public
water system as in Sec. 118.3(c)(2).
Endpoint means the concentration at which a worst case discharge no
longer has the ability to cause injury to public receptors or fish,
wildlife, and sensitive environments as in Appendix B or adversely
impact a public water system as in Sec. 118.3(c)(2).
Facility means any non-transportation-related onshore mobile or
fixed building, property, parcel, lease, structure, installation,
equipment, pipe, or in-plant pipeline (other than a vessel or a public
vessel), used in CWA hazardous substance handling, production,
manufacturing, storage, processing, refining, transfer, distribution,
treatment, or in which any CWA hazardous substance is used. The
boundaries of a facility depend on several site-specific factors,
including but not limited to, the ownership or operation of buildings,
structures, and equipment on the same site and types of activity at the
site. Contiguous or non-contiguous buildings, properties, parcels,
leases, structures, installations, pipes, or pipelines under the
ownership or operation of the same person may be considered separate
facilities. Non-transportation-related onshore facility means any
facility of any kind located in, on, or under any land within the
United States and excludes movement of CWA hazardous substances in
interstate or intrastate commerce under active shipping papers by rail,
pipeline, highway vehicle, or vessel pursuant to 49 CFR 171-180.
Fish, wildlife, and sensitive environments mean areas that may be
identified by their legal designation or by evaluations of Area
Committees (for planning) or members of the Federal On-Scene
Coordinator's spill response structure (during responses). These areas
may include wetlands, National and state parks, critical habitats for
endangered or threatened species, wilderness and natural resource
areas, marine sanctuaries and estuarine reserves, conservation areas,
preserves, wildlife areas, wildlife refuges, wild and scenic rivers,
recreational areas, national forests, Federal and state lands that are
research national areas, heritage program areas, land trust areas, and
historical and archaeological sites and parks. These areas may also
include unique habitats such as aquaculture sites and agricultural
surface water intakes, bird nesting areas, critical biological resource
areas, designated migratory routes, and designated seasonal habitats.
Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural
resource or public receptor resulting either directly or indirectly
from exposure to a discharge, or exposure to a product of reactions
(e.g., more hazardous degradation products, ignition, or reaction)
resulting from a discharge.
Interconnected containers mean containers that are connected via
pipes, hoses, or other conveyance (either permanent or temporary) to
allow movement of a CWA hazardous substance between containers.
Maximum extent practicable means within the limitations used to
determine CWA hazardous substance release planning resources for
recovery, shoreline protection, and cleanup for worst case discharges
from onshore non-transportation-related facilities in adverse weather.
It includes the planned capability to respond to a worst case
discharge, including a discharge resulting from fire or explosion, as
contained in a facility response plan that meets the requirements in
Sec. 118.11
[[Page 17927]]
or in a specific plan approved by the Regional Administrator.
Maximum capacity onsite means the total aggregate container
capacity for each CWA hazardous substance present at all locations
within the entire facility at any one time.
Mitigation or mitigation system(s) means specific activities,
technologies, or equipment designed or deployed to capture or control
substances upon loss of containment to minimize exposure of the public
or the environment. Passive mitigation means equipment, devices, or
technologies that function without human, mechanical, or other energy
input.
Navigable waters mean waters of the United States, including the
territorial seas, as defined in 40 CFR 120.2, adjoining shorelines, and
the exclusive economic zone. Exclusive economic zone means the zone
contiguous to the territorial sea of the United States extending to a
distance up to 200 nautical miles from the baseline from which the
breadth of the territorial sea is measured.
Offshore facility means any facility of any kind (other than a
vessel or public vessel) located in, on, or under any of the navigable
waters of the United States, and any facility of any kind that is
subject to the jurisdiction of the United States and is located in, on,
or under any other waters.
Offsite means areas beyond the property boundary of a facility, and
areas within the property boundary to which the public has routine and
unrestricted access during or outside business hours.
Onshore facility means any facility of any kind located in, on, or
under any land within the United States other than submerged land.
Furthermore, this extends to in, on, or under any submerged land as
delegated to the Environmental Protection Agency (EPA) pursuant to 40
CFR 112 Appendix B.
Owner or operator means any person owning or operating an onshore
facility or an offshore facility, and in the case of any abandoned
offshore facility, the person who owned or operated or maintained the
facility immediately prior to such abandonment.
Permanently closed means any container or facility for which:
(1) All CWA hazardous substance and residue has been removed from
each container and connecting line; and
(2) All connecting lines and piping have been disconnected from the
container and blanked off, all valves (except for ventilation valves)
have been closed and locked, and conspicuous signs have been posted on
each container stating that it is a permanently closed container and
noting the date of closure.
Person includes an individual, firm, corporation, association, or
partnership.
Planning distance means the distance to an endpoint such that a
worst case discharge of CWA hazardous substances to water from a
facility could adversely impact a public water system or cause injury
to fish, wildlife, and sensitive environments or public receptors, as
described in Sec. 118.10.
Public receptors mean parks, recreational areas, docks, or other
public spaces inhabited, occupied, or used by the public at any time
where members of the public could be injured as a result of a worst
case discharge to navigable waters.
Public vessel means a vessel owned or bareboat-chartered and
operated by the United States, or a state or political subdivision
thereof, or by a foreign nation, except when such vessel is engaged in
commerce.
Public water system is a system as defined in 40 CFR 141.2. A
public water system is either a ``community water system'' or a ``non-
community water system.''
Qualified individual (QI) means the individual having full
authority to implement response actions and required to initiate
immediate communications with the appropriate Federal official and the
persons providing personnel and equipment to respond, to the maximum
extent practicable, to a worst case discharge (including a discharge
resulting from fire or explosion) and to mitigate or prevent a
substantial threat of such a discharge.
Regional Administrator means the Regional Administrator of the EPA,
in and for the Region in which the facility is located.
Respond or response means containment, removal, remediation,
neutralization, source control, mechanical recovery, bioremediation, or
other release countermeasures, in accordance with the applicable
Regional Contingency Plan and Area Contingency Plan, of the CWA
hazardous substances from the water and adjoining shorelines or the
taking of such other actions that may be necessary to prevent,
minimize, or mitigate damage to the public health or welfare,
including, but not limited to, persons, fish, shellfish, wildlife,
public water systems, and public and private property, shorelines, and
beaches.
Reportable quantities mean quantities that may be harmful as set
forth in Sec. 117.3, the discharge into the environment during a 24-
hour period, which is a violation of Clean Water Act section 311(b)(3)
and requires notice as set forth in Sec. 117.21.
Response equipment means equipment (including firefighting
equipment), or other mitigating substances and devices, available to an
owner or operator and Federal, state, and local or Tribal agencies,
designed or used to ensure an effective and immediate response to a
discharge, and to ensure mitigation or prevention of a substantial
threat of a discharge.
Response resources means the personnel, equipment, supplies, and
other capability necessary to perform the response activities
identified in the facility response plan required under this part.
Source water protection area: The area delineated by the state for
a public water system or including numerous public water systems,
whether the source is ground water or surface water or both, as part of
the state Source Water Assessment Program approved by EPA under section
1453 of the Safe Drinking Water Act (42 U.S.C. 300j-13).
Spill response organization (SRO) means an entity that provides
spill response resources to mitigate or remove CWA hazardous substances
from the environment and mitigate associated impacts.
Transportation or transport means the movement of property and
loading, unloading, or storage incidental to movement pursuant to 49
CFR 171-199.
Transportation-related onshore facility means any facility of any
kind, in, on, or under any land within the United States which provides
movement or conveyances of CWA hazardous substances in interstate or
intrastate commerce by rail, pipeline, highway vehicle, or vessel
pursuant to 49 CFR 171-199.
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, and the Pacific
Island Governments.
Vessel means every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water other than a public vessel.
Water distribution system means a system which delivers potable
water to many end users and has a source of water, a treatment plant to
make the water drinkable, storage facility to keep water until it is
needed and distribution system to deliver water to the end user.
Worst case discharge for an onshore non-transportation-related
facility means the largest foreseeable discharge in adverse weather
conditions including
[[Page 17928]]
a discharge resulting from fire or explosion.
Sec. 118.3 Applicability.
This part applies to the owner or operator of any non-
transportation-related onshore facility that, because of its location,
could reasonably be expected to cause substantial harm to the
environment by discharging CWA hazardous substances into or on the
navigable waters by meeting the following criteria:
(a) Threshold quantity. The maximum capacity onsite for any CWA
hazardous substance listed at 40 CFR 116.4, at any one time, meets or
exceeds 10,000 times the Reportable Quantity in pounds (kilograms)
found at 40 CFR 117.3. Do not include any exemptions identified in
Sec. 118.8 or permanently closed containers in this determination. To
calculate the threshold quantities of CWA hazardous substances in
mixtures, follow the procedures in Sec. 118.9; and
(b) Proximity to navigable waters. The facility is located within
one-half mile of navigable waters or a conveyance to navigable waters;
and
(c) Substantial harm criteria. The facility meets one or more of
the following substantial harm criteria:
(1) Ability to cause injury to fish, wildlife, and sensitive
environments. The facility is located at a distance to an endpoint as
calculated using a planning distance in Sec. 118.10(b) such that a
worst case discharge from the facility could cause injury to fish,
wildlife, and sensitive environments. For identification of fish,
wildlife, and sensitive environments, facilities shall use the
applicable Area Contingency Plan prepared pursuant to section 311(j)(4)
of the Clean Water Act, in addition to identifying other areas pursuant
to the definition in Sec. 118.2;
(2) Ability to adversely impact a public water system. The facility
is located at a distance to an endpoint such that a discharge from the
facility could adversely impact a public water system. Ability to
adversely impact a public water system includes a concentration of a
CWA hazardous substance reaching a public water system which:
(i) Violates any National Primary Drinking Water Standard or State
Drinking Water Regulation, such as an exceedance of a Maximum
Contaminant Level at the point of compliance. If the facility is unable
or unwilling to work with the public water system to determine the
point of compliance, the facility shall use the water intake;
(ii) Compromises the ability of the public water system to produce
water that complies with any National Primary Drinking Water Standard
or State Drinking Water Regulation;
(iii) Results in adverse health impacts in people exposed to the
maximum concentration that could enter a drinking water distribution
system;
(iv) Contaminates public water system infrastructure, including but
not limited to intake structures, treatment facilities, and drinking
water distribution systems, or premise plumbing systems to a degree
that requires remediation to restore system components to acceptable
performance;
(v) Impairs the taste, odor, or other aesthetic characteristic of
the water entering a drinking water distribution system to a degree
that could make the water unacceptable to consumers and that could
prompt the public water system to issue use restrictions;
(3) Ability to cause injury to public receptors. The facility is
located at a distance to an endpoint as calculated using a planning
distance in Sec. 118.10(b) such that a discharge to navigable water
from the facility could cause injury to a public receptor as defined in
Sec. 118.2; or
(4) Reportable discharge history. The facility has had a reportable
CWA hazardous substance discharge under Sec. 117.21 within the last
five years.
Sec. 118.4 General requirements.
(a) Preparation and submission of facility response plans. The
owner or operator of any facility meeting the applicability
requirements of Sec. 118.3 shall prepare and submit a facility
response plan to the EPA, according to the following provisions:
(1) Initially regulated facilities. The owner or operator of a
facility in operation on the effective date of the final rule that
satisfies the criteria in Sec. 118.3 or that is notified by the
Regional Administrator pursuant to Sec. 118.5 shall prepare and submit
a facility response plan that satisfies the requirements of this
section to the Regional Administrator within 12 months of meeting the
criteria or notification.
(2) Newly regulated facilities. The owner or operator of a facility
in operation after the effective date of the final rule that satisfies
the criteria in Sec. 118.3 or that is notified by the Regional
Administrator pursuant to Sec. 118.5 shall prepare and submit a
facility response plan that satisfies the requirements of this section
to the Regional Administrator within six months of meeting the criteria
or notification, but no sooner than 12 months after the effective date
of the final rule.
(3) Newly constructed facilities. For a newly constructed facility
that commences operation after the effective date of the final rule,
and is required to prepare and submit a facility response plan based on
the criteria in Sec. 118.3, the owner or operator shall submit the
facility response plan to the Regional Administrator prior to the start
of operations, but no sooner than 12 months after the effective date of
the final rule. Adjustments to the facility response plan to reflect
changes that occur at the facility during the start-up phase of
operations must be submitted to the Regional Administrator after an
operational trial period of 60 days.
(4) Facilities regulated as a result of a planned event or change.
For a facility required to prepare and submit a facility response after
the effective date of the final rule as a result of a planned change in
design, construction, operation, or maintenance so that the facility
now meets the criteria in Sec. 118.3, the owner or operator shall
submit the facility response plan to the Regional Administrator before
the portion of the facility undergoing the planned change commences
operations, but no sooner than 12 months after the effective date of
the final rule (adjustments to the facility response plan to reflect
changes that occur at the facility during the start-up phase of
operations must be submitted to the Regional Administrator after an
operational trial period of 60 days).
(5) Facilities regulated as a result of an unplanned event or
change. For a facility required to prepare and submit a facility
response plan after the effective date of the final rule, as a result
of an unplanned event or change in facility characteristics that
renders the facility subject to the criteria in Sec. 118.3, the owner
or operator shall submit the facility response plan to the Regional
Administrator within six months of the unplanned event or change, but
no sooner than 12 months after the effective date of the final rule.
(b) Facility response plan amendments.
(1) The owner or operator of a facility for which a facility
response plan is required under this part shall revise and resubmit
revised portions of the facility response plan within 60 days of each
facility change that materially may affect the response to or potential
for a worst case discharge, including:
(i) A change in the facility's configuration that materially alters
the information included in the facility response plan;
(ii) A change in the CWA hazardous substance maximum capacity
onsite (e.g., commissioning or decommissioning of containers;
replacement, reconstruction, or
[[Page 17929]]
movement of containers) that materially alters the required response
resources;
(iii) A material change in capabilities of the spill response
organization(s) that provide equipment and personnel to respond to
discharges of CWA hazardous substances described in Sec. 118.11(a)(3);
(iv) A material change in the facility's discharge mitigation and
response equipment or emergency response procedures; and
(v) Any other changes that materially affect the implementation of
the facility response plan.
(2) Except as provided in paragraph (b) of this section, amendments
to information in the facility response plan (such as personnel,
contact information, or changes in the spill response organization(s))
that do not result in a material change in response capabilities do not
require review and approval by the Regional Administrator. Facility
owners or operators shall provide a copy of such changes to the
Regional Administrator as the revisions occur.
(3) The owner or operator of a facility that submits changes to a
facility response plan as provided in the preceding paragraphs of this
section shall provide the EPA-issued facility identification number
(where one has been assigned, such as Facility Registry Service number)
with the changes.
(4) The Regional Administrator shall review and approve or
disapprove changes to a facility response plan submitted pursuant to
the requirements in paragraph (b)(1) of this section for a facility
that he or she has determined pursuant to Sec. 118.5(c) to have the
potential to cause significant and substantial harm to human health or
the environment.
(c) Substantial harm certification form submission. If the facility
meets the criteria in Sec. 118.3(a) and (b), the owner or operator
must:
(1) Complete and submit to the EPA Regional Administrator the
substantial harm certification form in Appendix A to this part within
12 months of the effective date of the final rule or, for new
facilities, within one month of meeting the criteria in Sec. 118.3(a)
and (b), but not sooner than 12 months after the effective date of the
final rule. Owner or operators must retain their completed Appendix A
and supporting documentation for the duration that the CWA hazardous
substance maximum capacity onsite is at or exceeds the threshold
quantity and for an additional 10 years.
(2) Attach to the form documentation, calculations, and any other
information necessary to demonstrate the reliability and analytical
soundness of the substantial harm determination as well as a review of
potential receptors that could be impacted as a result of a CWA
hazardous substance discharge.
(3) Submit to the EPA Regional Administrator updates to the
substantial harm certification every five years, or within 60 days of a
change at or outside the facility that impacts the facility's potential
to cause substantial harm to the environment in accordance with the
criteria in Sec. 118.3.
(d) Assertion of claims of confidential business information.
(1) Except as provided in paragraph (2) of this section, an owner
or operator of a facility required to submit a facility response plan
or otherwise provide information under this part may make a claim of
confidential business information for any such information that meets
the criteria set forth in Sec. 2.302 of this chapter.
(2) Notwithstanding the provisions of 40 CFR part 2, an owner or
operator of a facility subject to this part may not claim as
confidential business information the following information:
(i) Data required by Sec. 118.11 (b); and
(ii) Data required in Appendix A of this part, excluding the
supporting documentation.
(iii) Notwithstanding the procedures specified in 40 CFR part 2, an
owner or operator asserting a claim of CBI with respect to information
contained in its facility response plan as per Sec. 118.11, shall
submit to EPA at the time it submits the facility response plan the
following:
(A) The information claimed confidential, provided in a format to
be specified by EPA;
(B) A sanitized (redacted) copy of the facility response plan, with
the notation ``CBI'' substituted for the information claimed
confidential, except that a generic category or class name shall be
substituted for any chemical name or identity claimed confidential; and
(C) The document or documents substantiating each claim of
confidential business information, as described in paragraph (e) of
this section.
(e) Substantiating claims of confidential business information.
(1) An owner or operator claiming that information is confidential
business information must substantiate that claim by providing
documentation that demonstrates that the claim meets the substantive
criteria set forth in Sec. 2.302 of this chapter.
(2) Information that is submitted as part of the substantiation may
be claimed confidential by marking it as confidential business
information. Information not so marked will be treated as public and
may be disclosed without notice to the submitter. If information that
is submitted as part of the substantiation is claimed confidential, the
owner or operator must provide sanitized and unsanitized versions of
the substantiation.
(3) The owner, operator, or senior official with management
responsibility at the facility shall sign a certification that the
signer has personally examined the information submitted and that based
on inquiry of the persons who compiled the information, the information
is true, accurate, and complete, and that those portions of the
substantiation claimed as confidential business information would, if
disclosed, reveal trade secrets or other confidential business
information.
Sec. 118.5 Regional Administrator determination of substantial harm
and significant and substantial harm.
(a) Regional Administrator authority to require facility response
plans. The Regional Administrator may at any time require the owner or
operator of any non-transportation-related onshore facility to prepare
and submit a facility response plan under this section after
considering the factors in paragraph (b) of this section. If such a
determination is made, the Regional Administrator shall notify the
facility owner or operator in writing and shall provide a basis for the
determination. If the Regional Administrator notifies the owner or
operator in writing of the requirement to prepare and submit a facility
response plan under this section, the owner or operator of the facility
shall submit the facility response plan to the Regional Administrator
within six months of receipt of such written notification but no sooner
than 12 months after the effective date of the final rule.
(b) Regional Administrator substantial harm determination. To
determine whether a facility could, because of its location, reasonably
be expected to cause substantial harm to the environment by a
discharge, or substantial threat of a discharge, of CWA hazardous
substances to navigable waters, the Regional Administrator may consider
the following:
(1) Type of transfer operation(s);
(2) CWA hazardous substance quantity and category as determined in
40 CFR 117.3 stored onsite;
(3) Proximity to fish, wildlife, and sensitive environments and
other areas determined by the Regional Administrator to possess
ecological value;
(4) Ability to adversely impact public water systems as described
in Sec. 118.3(c)(ii);
[[Page 17930]]
(5) Location in a source water protection area;
(6) Ability to cause substantial harm to public receptors due to a
worst case discharge to navigable waters;
(7) Lack of passive mitigation measures or systems, including those
that enhance resilience to climate change;
(8) Potential for a worst case discharge to adversely impact
communities with environmental justice concerns;
(9) Potential vulnerability to adverse weather conditions resulting
from climate change;
(10) Reportable discharge history; or
(11) Other site-specific characteristics and environmental factors
that the Regional Administrator determines to be relevant to protecting
the public or environment from harm by discharges, or a substantial
threat of discharge, of CWA hazardous substances into or on navigable
waters.
(c) Regional Administrator responsibilities for significant and
substantial harm facilities. The Regional Administrator shall review
facility response plans submitted by facilities meeting the
applicability requirements of Sec. 118.3 to determine whether the
facility could, because of its location, reasonably be expected to
cause significant and substantial harm to the environment by a
discharge, or a substantial threat of discharge, of CWA hazardous
substances into or on the navigable waters based on the factors
identified in paragraph (d) of this section. If such a determination is
made, the Regional Administrator shall notify the owner or operator of
the facility in writing and:
(1) Promptly review the facility response plan;
(2) Require amendments to any facility response plan that does not
meet the requirements of this section;
(3) Approve any facility response plan that meets the requirements
of this section; and
(4) Review each facility response plan periodically thereafter on a
schedule established by the Regional Administrator.
(d) Regional Administrator significant and substantial harm
determination. To determine whether a facility could, because of its
location, reasonably be expected to cause significant and substantial
harm to the environment by discharging a CWA hazardous substance into
or on the navigable waters, the Regional Administrator shall consider
the factors in paragraph (b) of this section and Sec. 118.3(c), as
well as the following:
(1) Frequency of past reportable discharges;
(2) Proximity to navigable waters;
(3) Age of containers and equipment;
(4) Potential for hazards such as flooding, hurricanes,
earthquakes, or other disasters that could result in a worst case
discharge; and
(5) Other facility-specific and Region-specific information,
including local impacts on public health.
Sec. 118.6 Appeals process.
(a) Owner or operator request to reconsider requirement to prepare
a facility response plan. In the event the owner or operator of a
facility does not agree with the Regional Administrator's determination
that the facility could, because of its location, reasonably be
expected to cause substantial harm or significant and substantial harm
to the environment by discharging CWA hazardous substances into or on
the navigable waters, or that amendments to the facility response plan
are necessary prior to approval, such as changes to the worst case
discharge planning quantity, the owner or operator may submit a request
for reconsideration to the Regional Administrator and provide
additional information and data in writing to support the request. The
request and accompanying information must be submitted to the Regional
Administrator within 60 days of receipt of notice of the Regional
Administrator's original decision. The Regional Administrator shall
consider the request and render a decision as soon as practicable.
(b) Owner or operator request to reconsider facility classification
status. In the event the owner or operator of a facility believes a
change in the facility's classification status is warranted because of
an unplanned event or change in the facility's characteristics (i.e.,
substantial harm or significant and substantial harm), the owner or
operator may submit a request for reconsideration to the Regional
Administrator and provide additional information and data in writing to
support the request. The Regional Administrator shall consider the
request and render a decision as soon as practicable.
(c) Appeal process following Regional Administrator decision. After
a request for reconsideration under paragraph (a) or (b) of this
section has been denied by the Regional Administrator, an owner or
operator may appeal a determination made by the Regional Administrator.
The appeal shall be made to the EPA Administrator and shall be made in
writing within 60 days of receipt of the decision from the Regional
Administrator that the request for reconsideration was denied. A
complete copy of the appeal must be sent to the Regional Administrator
at the time the appeal is made. The appeal shall contain a clear and
concise statement of the issues and points of fact in the case. It also
may contain additional information from the owner or operator, or from
any other person. The EPA Administrator may request additional
information from the owner or operator, or from any other person. The
EPA Administrator shall render a decision as soon as practicable and
shall notify the owner or operator of the decision, at which time the
owner or operator must submit a Facility Response Plan within 60 days.
Sec. 118.7 Petitions.
(a) Any person, including a member of the public or any
representative from a Federal, state, or local agency who believes that
a facility subject to this section could, because of its location,
reasonably be expected to cause substantial harm to the environment by
a discharge, or substantial threat of a discharge, of CWA hazardous
substance into or on the navigable waters may petition the Regional
Administrator to determine whether the facility meets the criteria in
section Sec. 118.3. Such a petition shall include a discussion of how
the factors in Sec. 118.3 apply to the facility in question. The
Regional Administrator shall consider such petitions and respond as
soon as practicable.
Sec. 118.8 Exceptions and exemptions.
(a) Exceptions. This part does not apply to the owner or operator
of any facility, equipment, or operation that is not subject to the
jurisdiction of the EPA under section 33 U.S.C. 1321(j)(5)(C), as
follows:
(1) Any onshore facility, that due to its location, could not
reasonably be expected to have a discharge, or substantial threat of a
discharge, as described in Sec. 118.3. This determination must be
based solely upon consideration of the geographical and location
aspects of the facility (such as proximity to navigable waters, land
contour, drainage, etc.) and must exclude consideration of manmade
features such as dikes, equipment, or other structures, which may serve
to restrain, hinder, contain, or otherwise prevent a discharge.
(2) Any equipment, or operation of a vessel or transportation-
related onshore facility which is subject to the authority and control
of the U.S. Department of Transportation, and which provides movement
or conveyances of CWA hazardous substances in interstate or intrastate
commerce by rail, pipeline,
[[Page 17931]]
highway vehicle, or vessel. For modes other than pipeline, this
exception is limited to movement under active shipping papers prior to
arrival at a final destination pursuant to 49 CFR 171-180.
(3) Any equipment, or operation of a vessel or onshore or offshore
facility which is subject to the authority and control of the U.S.
Coast Guard or the U.S. Department of the Interior, as defined in the
Memorandum of Understanding between the Secretary of Transportation,
the Secretary of the Interior, and the Administrator of EPA (40 CFR
part 112, Appendix B).
(4) Any underground storage tank and connected underground piping,
underground ancillary equipment, and containment systems, at any
facility, that is subject to all of the technical requirements of part
280 of this chapter or a state program approved under part 281 of this
chapter.
(b) Exemptions. For the purposes of determining whether the maximum
capacity onsite meets or exceeds the threshold quantity of a CWA
hazardous substance or substances, under Sec. 118.3(a), at the
facility, the following exemptions apply:
(1) Articles. CWA hazardous substances contained in articles need
not be considered when determining whether the maximum capacity onsite
meets or exceeds the threshold quantity.
(2) Uses. CWA hazardous substances, when in use for the following
purposes, need not be included in determining whether the maximum
capacity onsite meets or exceeds the threshold quantity:
(i) Structural components. Use as a structural component of the
facility;
(ii) Janitorial. Use of products for routine janitorial
maintenance;
(iii) Foods, drugs, cosmetics. Use by employees of foods, drugs,
cosmetics, or other personal items containing the CWA hazardous
substance;
(iv) Process water or cooling water. Use of CWA hazardous
substances present in process water or non-contact cooling water as
drawn from the environment or municipal sources;
(v) Compressed air. Use of CWA hazardous substances present in air
used either as compressed air or as part of combustion; and
(vi) Retail and personal uses. Use for personal, family, or
household purposes, or present in the same form and concentration as a
product packaged for distribution and use by the general public.
Present in the same form and concentration as a product packaged for
distribution and use by the general public means a CWA hazardous
substance packaged in a similar manner and present in the same
concentration as the substance when packaged for use by the general
public, whether or not it is intended for distribution to the general
public or used for the same purpose as when it is packaged for use by
the general public.
Sec. 118.9 Mixtures.
For the purposes of determining the CWA hazardous substance maximum
capacity onsite at the facility of CWA hazardous substance(s), under
Sec. 118.3(a), the following provisions apply to CWA hazardous
substances mixtures:
(a) If the quantity of all of the CWA hazardous substance
constituent(s) of the mixture or solution is known, the mixture meets
the threshold quantity when the maximum capacity onsite, as defined in
Sec. 118.2, meets or exceeds the threshold quantity of any CWA
hazardous substance in the mixture by extrapolating the amount of each
constituent to the full capacity of the container.
(b) If the quantity of one or more of the CWA hazardous substance
constituent(s) of the mixture or solution is unknown, the mixture meets
the threshold when the maximum capacity onsite of the mixture or
solution meets or exceeds the quantity for the CWA hazardous substance
established in section Sec. 118.3(a) with the lowest threshold
quantity by extrapolating the amount of the known constituent(s) to the
full capacity of the container.
Sec. 118.10 Worst case discharge.
Facilities are required to model a worst case discharge scenario;
calculate endpoint distances to fish, wildlife, and sensitive
environments and public receptors; and compare endpoint
concentration(s) against calculated concentration(s). The worst case
discharge scenario represents the single CWA hazardous substance
maximum capacity onsite that meets or exceeds the threshold quantity
set in Sec. 118.3(a) that equals the largest quantity following the
below parameters:
(a) Determination of worst case discharge quantity. The worst case
discharge quantity shall be the greater of the following:
(1) For CWA hazardous substances in separate containers, the
maximum capacity of a single container;
(2) For CWA hazardous substances in interconnected containers, the
maximum capacity of a group of interconnected containers; or
(3) For substances in pipes, the maximum capacity of a pipe or
interconnected pipes, and the owner or operator must provide evidence
in the facility response plan that containers with common piping or
piping systems are not operated as one unit.
(4) For mixtures of CWA hazardous substances, assume the entire
capacity of the container, interconnected containers, or pipes or
interconnected pipes hold(s) the CWA hazardous substance with the
lowest RQ.
(b) Planning distance determinations. To determine the distance to
endpoints for fish, wildlife, and sensitive environments, public water
systems, and public receptors as referenced in Sec. 118.3(c), a
facility shall use a methodology, model, or other technique that
accounts for facility-specific conditions and accounts for the stated
requirements in this paragraph. A facility may use proprietary models,
provided that the owner or operator allows EPA access to the model,
submits documentation that demonstrates the reliability and analytical
soundness of the methodology used, and describes the model's features
to local emergency planners, upon request.
(1) Endpoints for fish, wildlife, and sensitive environments are
provided in Appendix B of this part.
(2) Endpoints for public receptors are provided in Appendix B of
this part.
(3) In determining the distance to endpoints, owners or operators
shall consider the following parameters:
(i) Factors affecting overland transport including:
(A) Nearest opportunity for discharge to navigable waters;
(B) Ground conditions which may include topography of the
surrounding area, drainage patterns, land use coverage, impervious
cover, soil distribution or porosity, and soil absorption rate or soil
saturation during adverse weather conditions; and
(C) Properties of the CWA hazardous substance, which may include
evaporation rate based on wind speed; atmospheric stability, ambient
temperature, pressure, and humidity; reactivity with rainwater and/or
other substances; ignitability and explosive potential; flooding; and
pooling.
(ii) Factors affecting in-water transport including:
(A) Point of entry to navigable water;
(B) Flow rate and duration of the discharge;
(C) Direction of the discharge at the point of entry;
(D) Surface versus underwater entry; and
(E) Conditions of the receiving water including the velocity of the
navigable water which may be affected by: Slope of the river; hydraulic
radius; turbulence and potential for cross-channel mixing; Manning's
Roughness coefficient; differentiation of still, tidal
[[Page 17932]]
or moving waters; currents; wave height; tidal influence; and water
temperature and salinity.
(iii) Adverse weather conditions, which shall be calculated based
on adverse winds, currents, and/or river stages, over a range of
seasons, weather conditions, and river stages.
(iv) Properties of the CWA hazardous substance such as solubility
in water, speciation in water, density (relative to water), polarity,
vapor pressure, reactivity with water and common solutes in natural
waterbodies, human toxicity, mammalian toxicity, aquatic toxicity, and
flammability.
Sec. 118.11 Facility response plan requirements.
(a) General requirements. A written plan that complies with other
Federal contingency plan regulations or is consistent with the approach
in the National Response Team's Integrated Contingency Plan Guidance
(``One Plan'') and that includes the elements provided in this section
shall satisfy the requirements. The owner or operator may augment an
existing plan with these required elements. All facility response plans
must include the following:
(1) Consistency With National Contingency Plan and Area Contingency
Plans. Plans must be consistent with the requirements of the National
Oil and Hazardous Substance Pollution Contingency Plan (40 CFR part
300) and applicable Area Contingency Plans prepared pursuant to section
311(j)(4) of the Clean Water Act.
(i) The owner or operator shall review relevant portions of the
National Oil and Hazardous Substances Pollution Contingency Plan and
applicable Area Contingency Plan annually and, if necessary, revise the
facility response plan to ensure consistency with these plans.
(2) Qualified individual. Identify the qualified individual having
full authority to implement response actions and require immediate
communications between that individual and the appropriate Federal
official and the persons providing personnel and equipment, with a
description of duties including:
(i) Activate internal alarms and hazard communication systems to
notify all facility personnel;
(ii) Notify all response personnel, as needed;
(iii) Identify the character, exact source, amount, and extent of
the discharge, as well as the other items needed for notification;
(iv) Notify and provide necessary information to the appropriate
Federal, state, and local authorities with designated response roles,
including the National Response Center, State Emergency Response
Commission or Tribal Emergency Response Commission, and Local Emergency
Planning Committee or Tribal Emergency Planning Committee;
(v) Notify and provide necessary information to public water
systems that may be impacted by a discharge;
(vi) Assess the interaction of the discharged CWA hazardous
substance with water, solutes in water, water treatment chemicals, and/
or other substances stored at the facility and notify response
personnel at the scene of that assessment;
(vii) Assess the possible hazards to human health and the
environment due to the discharge. This assessment must consider both
the direct and indirect effects of the discharge (i.e., the effects of
any toxic, irritating, or asphyxiating gases that may be generated, or
the effects of any hazardous surface water runoffs from water or
chemical agents used to control fire and heat-induced explosion) and
initiate appropriate monitoring;
(viii) Implement prompt response actions to contain and respond, to
the maximum extent practicable, to the CWA hazardous substance
discharged;
(ix) Coordinate rescue and response actions as previously arranged
with all response personnel;
(x) Use authority to immediately access company funding to initiate
cleanup activities;
(xi) Direct cleanup activities until properly relieved of this
responsibility; and
(xii) Acquire and maintain incident commander training requirements
consistent with 29 CFR 1910.120(q)(6)(v).
(3) Response resources. Identify, and ensure by contract or other
approved means, the availability of private personnel and equipment
necessary to respond to the maximum extent practicable to a worst case
discharge of CWA hazardous substances (including a discharge resulting
from fire or explosion), and to mitigate or prevent a substantial
threat of such a discharge;
(4) Training, testing and drills. Describe the training, equipment
testing, periodic unannounced drills, and response actions of persons
at the facility to be carried out under the plan to ensure facility
safety and to mitigate or prevent the discharge, or the substantial
threat of a discharge; and,
(5) Plan updates. Review and update facility response plan
periodically and resubmit to the Regional Administrator for approval of
each significant change.
(b) Emergency response information. The facility response plan
shall include:
(1) Facility information. Facility details including the facility
name; latitude and longitude; street address, with city, state, and zip
code; telephone number; and facility location information described in
a manner that would aid a reviewer and a responder in locating the
facility;
(2) Owner or operator information. Contact information to include
name and preferred contact method;
(3) Hazard evaluation. Hazard evaluation for worst case discharge
and risk-based decision support system shall include:
(i) Chemical-specific information, including the response
considerations, health hazards, fire hazards, chemical reactivity,
hazard classifications, and physical and chemical properties; potential
effects of a CWA hazardous substance worst case discharge on the
ability to adversely impact a public water system; ability to cause
injury to fish, wildlife, and sensitive environments; and ability to
cause injury to public receptors; impacts to communities with
environmental justice concerns; and impacts of climate change,
including but not limited to increased flooding or subsidence, sea
level rise, wildfires, and increased vulnerability to and changes in
the frequency of natural disasters. Illustrative diagrams of the hazard
evaluation should be included in the hazard evaluation.
(ii) This section of the plan must outline processes that will help
responders make decisions relating to the identification, evaluation,
and control of risks to human health and the environment following a
CWA hazardous substance discharge. The processes outlined below do not
need to be scenario-specific but can be generic in nature. At a
minimum, the processes must include all the following:
(A) Risk identification--describe the process that will be used to
determine the extent and route of CWA hazardous substance exposure to
humans and the environment including location of containers and their
contents;
(B) Risk characterization--describe the process that will be used
to establish relative degrees of risk and prioritizing risks;
(C) Risk control--describe the process that will be used to
determine feasible response methods to mitigate CWA hazardous substance
discharge impacts on human health and the environment; and
(D) Risk communication--describe the process that will be used to
communicate information resulting
[[Page 17933]]
from paragraphs (A), (B), and (C) of this section to parties internal
and external to response activities.
(4) Reportable discharge history. Discharges reported under 40 CFR
part 117.21 that reached navigable water with additional data including
date, time, and discharge duration; CWA hazardous substance(s)
discharged; estimated quantity discharged in pounds; quantity
discharged that reached navigable water in pounds; the type of
discharge event and its source; weather conditions; on-site impacts;
offsite impacts; initiating event; description of how the discharge was
detected; clean-up actions taken, steps taken to reduce the possibility
of recurrence; and contributing factors;
(5) Response personnel and equipment. The identity and a
description of response personnel and equipment and response action
implementation necessary to respond to the maximum extent practicable
to a worst case discharge of a CWA hazardous substance described in
Sec. 118.10, and to mitigate or prevent a substantial threat of a
worst case discharge;
(6) Contracts. Evidence of contracts or other approved means as per
the definition in Sec. 118.2 to ensure the availability of proper
response personnel and equipment;
(7) Notifications. A list of the identities, contact information,
and preferred communication method(s) of individuals or organizations
to be notified in the event of a discharge so that immediate
communications and liaising between the qualified individual identified
in paragraph (a)(2) of this section and the appropriate Federal
officials; state, local, or Tribal response organizations; and persons
providing response personnel and equipment can be ensured, and a
description of communication methods. Notification shall include but
not be limited to the: National Response Center, qualified individual,
facility response team, Federal On-Scene Coordinator and/or Regional
Response Center, local response team (fire department or cooperatives),
fire marshal, the State Emergency Response Commission or Tribal
Emergency Response Commission, state police, Local Emergency Planning
Committee or Tribal Emergency Planning Committee, downstream public
water systems, local television/radio stations for evacuation
notification, local hospitals, and any other potential receptor or
interested party who could be impacted by a discharge;
(8) Discharge information. A description of information to pass to
response personnel in the event of a reportable discharge, including
specifics about the event, CWA hazardous substance name and quantity
discharged, possible areas and receptors affected, potential routes of
transport, distance(s) to nearby waterways and conveyances, any data on
the characteristics of the CWA hazardous substance and other hazardous
substances in proximity, ignition sources, and any other information
that may be helpful to responders and the public;
(9) Personnel roles and responsibilities. A description of response
personnel capabilities, including the duties of persons at the facility
during a response action and their response times, training, and
qualifications;
(10) Response equipment information. A description of the
facility's response equipment, the location of the equipment, last
inspection or response equipment test date, inspection frequency, last
deployment drill date, deployment frequency, response times, and
equipment testing;
(11) Evacuation plans. Facility-wide plans for evacuation including
a diagram and a reference to and coordination with community evacuation
plans, as appropriate, and considering locations of CWA hazardous
substances and their risks when discharged; anticipated flow direction;
water conditions; emergency response personnel and equipment arrival
routes; limitations on evacuation routes; transportation of injured
personnel to nearest emergency medical facility; location of alarm/
notification systems; check-in areas for evacuation validation; command
center location; and location of shelter at the facility as an
alternative to evacuation;
(12) Discharge detection systems. Procedures and equipment used to
detect discharges, as well as detect and monitor any hazardous air
releases resulting from discharges to navigable water, including
personnel or automatic discharge detection for regular and afterhours
operations by CWA hazardous substance, reliability checks, and
inspection frequency;
(13) Response actions. Response actions to be carried out by
facility personnel or contracted personnel under the facility response
plan to ensure the safety of the facility and to mitigate or prevent
discharges described in Sec. 118.10 or the substantial threat of such
discharges, including immediate response actions for personnel safety,
personal protective equipment use, facility personnel responsibilities
by job title, facility personnel actions, facility personnel
information gathering assignments for response personnel, and facility
responsibilities to mitigate a CWA hazardous substance incident. For
air or water sampling or monitoring, include personnel responsibilities
for recordkeeping, procedures for sharing real time data with response
personnel and the public, personal protective equipment requirements,
and safety procedures;
(14) Disposal plans. Plans to dispose of contaminated cleanup
materials, if appropriate to the material, including how and where the
facility intends to recover, reuse, decontaminate, treat, and/or
dispose of materials after a discharge has taken place and plans for
temporary storage of recovered materials as well as the appropriate
permits required to manage recovered materials according to local,
state, and Federal requirements. The disposal plan must account for
recovered product; contaminated soil and water; contaminated equipment
and materials, including drums, tank parts, valves, and shovels;
personal protective equipment; decontamination solutions; adsorbents;
and spent chemicals;
(15) Containment measures. Measures to provide adequate containment
and drainage of discharged CWA hazardous substances including
containment volumes, draining routes from storage and transfer areas,
materials used to construct drainage troughs, number and types of
valves and separators used in the drainage system, sump pump
capacities, containment capacity of weirs and booms and their
locations, and other cleanup materials;
(16) Training procedures. Training procedures as per Sec. 118.13;
(17) Exercise procedure. Exercise procedures as per Sec. 118.13
and the schedule set under Sec. 118.12(c); and
(18) Self-inspection. Written procedures and records of inspections
for including an inspection checklist and method to record the
inspection date and findings, to be retained for five years.
Sec. 118.12 Coordination Activities.
The facility response plan shall be coordinated with the local
emergency response plan developed by the Local Emergency Planning
Committee or Tribal Emergency Planning Committee under section 303 of
title III of the Superfund Amendments and Reauthorization Act of 1986
(42 U.S.C. 11001 et seq.). Upon request, the owner or operator shall
provide a copy of the facility response plan to the Local Emergency
Planning Committee, Tribal Emergency Planning Committee, State
Emergency Response Commission, or
[[Page 17934]]
Tribal Emergency Response Commission. The owner or operator of a
facility shall coordinate response needs with local emergency planning
and response organizations to determine how the facility is addressed
in the community emergency response plan and to ensure that local
response organizations are aware of the CWA hazardous substances at the
facility, their quantities, the risks presented, and the resources and
capabilities provided by the facility to respond to a worst case
discharge of a CWA hazardous substance.
(a) Coordination shall occur at least annually, and more frequently
if necessary, to address changes at the facility, in the facility
response plan, and/or in the community emergency response plan.
(b) Coordination shall include providing to the appropriate state,
local, or Tribal emergency planning and response organizations the
facility response plan, updated emergency contact information, and
other information necessary for developing and implementing the local
emergency response plan.
(c) Coordination shall include consulting with appropriate state,
local, or Tribal emergency response officials to establish appropriate
schedules and plans for drills and exercises required under Sec.
118.13. The owner or operator shall request an opportunity to meet with
the Local Emergency Planning Committee or Tribal Emergency Planning
Committee (or equivalent) and/or local fire department as appropriate
to review and discuss those materials.
(d) The owner or operator shall document coordination with
appropriate state, local, or Tribal authorities, including:
(i) The names of individuals involved and their contact information
(phone number, email address, and organizational affiliations), dates
of coordination activities, and nature of coordination activities and
(ii) Signed agreements on activities and resources, identified by
the facility, in the facility response plan to be performed by the
appropriate state, local, or Tribal emergency response organizations.
Sec. 118.13 Facility response training, drills, and exercises.
(a) The owner or operator of any facility required to prepare a
facility response plan under Sec. 118.3 shall develop and implement a
facility response training program and a drills and exercise program
that satisfy the requirements of this section. The owner or operator
shall describe the programs in the facility response plan as provided
in Sec. 118.11.
(b) The facility owner or operator shall develop a facility
response training program to train those personnel involved in CWA
hazardous substance response activities.
(1) A facility owner or operator must identify the method to be
used for training any volunteers or casual laborers used during a
response to comply with the requirements of 29 CFR 1910.120.
(2) The facility owner or operator is responsible for ensuring that
all private response personnel are trained to meet the Occupational
Safety and Health Administration standards for emergency response
operations in 29 CFR 1910.120.
(3) The facility response plan shall include a description of the
training program as described in Sec. 118.11.
(4) The facility response plan shall include logs of CWA hazardous
substance facility response plan meetings, type of response training
and dates, personnel responsibilities during a response action, and
drills and exercises. These logs will be maintained as an annex to the
facility response plan. Logs will be kept for five years following each
training session.
(c) The facility owner or operator shall develop a program of
facility response drills and exercises, including evaluation
procedures. A program that follows the National Preparedness for
Response Exercise Program (PREP) will be deemed as compliant with the
drill and exercise requirements of this section. An alternative program
or deviations from the PREP exercise requirements may also be developed
by the owner or operator and are subject to approval by the Regional
Administrator.
(1) Drills and exercises shall, when appropriate, be coordinated
with local public emergency response officials and these officials
shall be invited to participate.
Appendix A to Part 118: Certification Form
Facility Name:
Facility Address:
EPA Facility ID:
Facility Latitude/Longitude:
Facility Qualified Individual (Last name, First name):
Facility Contact (phone):
Facility Contact (email):
Parent Company:
Facility industry NAICS code:
1. Does the facility have a maximum capacity onsite of a CWA
hazardous substance greater than or equal to the CWA Reportable
Quantity (RQ) x 10,000?
Yes __ No __
If so, list names, CAS no., and maximum quantities (lbs) stored
onsite for each CWA hazardous substance:
2. Is the facility within one-half mile of navigable waters or a
conveyance to navigable waters?
Yes __ No __
If the answers to 1 and 2 are Yes, answer questions 3-6.
3. Is the facility located at a distance such that a discharge
from the facility could cause injury to fish, wildlife, and
sensitive environments? For further description of fish, wildlife.
and sensitive environments, see the applicable Area Contingency
Plan. Attach documentation of the formulas, assumptions, and
distance to receptors calculated.
Yes __ No __
Distance to fish, wildlife, and sensitive environments (feet or
miles):
Type of fish, wildlife, and sensitive environment receptor(s):
Names, CAS no. and worst case discharge quantity (lbs) for each
CWA hazardous substance:
4. Is the facility located at a distance such that a discharge
from the facility could adversely impact a public water system,
including a concentration reaching a public water system intake
which:
(i) Violates any National Primary Drinking Water Standard or
State Drinking Water Regulation, such as exceedance of a Maximum
Contaminant Level at the point of compliance;
(ii) Compromises the ability of the public water system to
produce water that complies with any National Primary Drinking Water
Standard or State Drinking Water Regulation;
(iii) Results in adverse health impacts in people exposed to the
maximum concentration that could enter a drinking water distribution
system;
(iv) Contaminates public water system infrastructure, including
but not limited to intake structures, treatment facilities, and
distribution systems, or premise plumbing systems to a degree that
requires remediation to restore system components to acceptable
performance; or
(iv) Impairs the taste, odor, or other aesthetic characteristic
of the water entering a drinking water distribution system to a
degree that could make the water unacceptable to consumers and that
could prompt the public water system to issue use restrictions.
Yes __ No __
Attach documentation of the formulas used for calculating
planning distance, assumptions, and efforts to coordinate with
public water systems.
Which criteria are met for the above substantial harm to
drinking water (1-5)?
Attach documentation attesting to the required consultation with
the applicable public water system, including name of public water
system, point of contact, and date of consultation for each
potentially impacted public water system, or provide detail on point
of compliance at the water intake.
5. Is the facility located at a distance such that a discharge
from the facility could cause injury to public receptors? Attach
documentation of the formulas and planning distance used.
[[Page 17935]]
Yes __ No __
Distance to public receptor (feet or miles):
Type and description of receptor:
Name of CWA hazardous substance and worst case discharge
quantity (pounds):
6. Has the facility experienced a reportable CWA hazardous
substance discharge within the last five years?
Yes __ No __
Attach relevant documentation of past reportable discharges
For each reportable discharge identify:
Name of CWA hazardous substance, CAS no.
Date of discharge:
Duration of discharge (minutes):
Quantity discharged (lbs):
Waterway impacted:
Injury caused to FWSE:
Injury caused to public receptors:
Adverse impacts to public water systems:
NRC report number:
Certification
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this document, and
that based on my inquiry of those individuals responsible for
obtaining this information, I believe that the submitted information
is true, accurate, and complete.
Signature
Name (please type or print)
Title
Date
Phone/Email
Appendix B to Part 118--Toxicity Endpoints for Calculating Planning
Distance for Fish, Wildlife and Sensitive Environments and Public
Receptors
Table 1--Concentrations for Public Receptors and Fish, Wildlife, and Sensitive Environments
----------------------------------------------------------------------------------------------------------------
Endpoints for public receptors Endpoints for fish, wildlife
LD50 and sensitive environments
--------------------------------- using 96-hour LC50
Mammalian toxicity --------------------------------
Category RQ (lbs.) (oral) (mg/kg) Aquatic toxicity
---------------------- 10% (mg/ (mg/liter) 10% (mg/
kg) ---------------------- L)
Lower Upper Lower Upper
----------------------------------------------------------------------------------------------------------------
X.................................. 1 0 0.1 0.01 0 0.1 0.01
A.................................. 10 0.1 1 0.1 0.1 1 0.1
B.................................. 100 1 10 1 1 10 1
C.................................. 1,000 10 100 10 10 100 10
D.................................. 5,000 100 500 50 100 500 50
----------------------------------------------------------------------------------------------------------------
PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN
0
2. The authority citation for part 300 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 9601-9657; E.O.
13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR
54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR,
1987 Comp., p. 193
0
3. Revise Sec. 300.185 to read as follows:
Sec. 300.185 Nongovernmental participation.
(a) Industry groups, academic organizations, and others are
encouraged to commit resources for response operations. Specific
commitments should be listed in the RCP and ACP. Those entities
required to develop tank vessel and facility response plans under CWA
section 311(j) must be able to respond to a worst case discharge to the
maximum extent practicable, and shall commit sufficient resources to
implement other aspects of those plans in accordance with the
requirements of 30 CFR part 254, 33 CFR parts 150, 154, and 155; 40 CFR
parts 112 and 118; and 49 CFR parts 171 and 194.
0
4. Revise Sec. 300.211 paragraph (c) to read as follows:
Sec. 300.211 OPA facility and vessel response plans.
* * * * *
(c) For non-transportation-related onshore facilities, these
regulations are codified in 40 CFR 112.20 and 40 CFR part 118;
* * * * *
0
5. Add Sec. 300.411 to read as follows:
Sec. 300.411 Response to CWA hazardous substance worst case
discharges.
(a) If the investigation by the OSC shows that a discharge is a
worst case discharge as defined in the ACP, or there is a substantial
threat of such a discharge, the OSC shall:
(1) Notify the NSFCC;
(2) Require, where applicable, implementation of the worst case
portion of an approved facility response plan required by CWA section
311(j)(5);
(3) Implement the worst case portion of the ACP required by CWA
section 311(j)(4); and
(4) Take whatever additional response actions are deemed
appropriate.
(b) Under the direction of the OSC, the NSFCC shall coordinate use
of private and public personnel and equipment, including strike teams,
to respond to a worst case discharge and mitigate or prevent a
substantial threat of such a discharge.
[FR Doc. 2022-05505 Filed 3-25-22; 8:45 am]
BILLING CODE 6560-50-P