Clean Water Act Hazardous Substance Facility Response Plans, 21924-21967 [2024-05870]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 118 and 300
[EPA–HQ–OLEM–2021–0585; FRL–7881–
01–OLEM]
RIN 2050–AH17
Clean Water Act Hazardous Substance
Facility Response Plans
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
Table of Contents
The U.S. Environmental
Protection Agency (EPA or Agency) is
finalizing facility response plan
requirements for worst case discharges
of Clean Water Act (CWA) hazardous
substances for onshore nontransportation-related facilities that
could reasonably be expected to cause
substantial harm to the environment by
discharging a CWA hazardous substance
into or on the navigable waters,
adjoining shorelines, or exclusive
economic zone.
DATES: This final rule is effective on
May 28, 2024.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OLEM–2021–0585. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
SUMMARY:
available electronically through https://
www.regulations.gov.
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: broussard.rebecca@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. 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 incremental costs and
benefits of this action?
E. List of Abbreviations and Acronyms
II. Background
A. Statutory Authority and Delegation of
Authority
1. Statutory Requirements
2. Delegation of Authority
B. Litigation
C. Proposed Rule
III. This Action
A. General Comments
B. Costs and Benefits of Various Regulatory
Provisions
C. Background Analyses
1. CWA Hazardous Substance Discharge
History and Impacts Analysis
2. Analysis of Existing Programs/Technical
Background Document
D. Rule Provisions
1. Definitions
2. Applicability
3. General Requirements
4. Regional Administrator Determination of
Substantial Harm and Significant and
Substantial Harm
5. Appeals
6. Petitions
7. Exceptions and Exemptions
8. Mixtures
9. Worst Case Discharge Calculations
10. Facility Response Plan Requirements
11. Substantial Harm Certification Form
12. Confidential Business Information
(CBI)
E. Additional Considerations
1. Climate Change
2. Communities With Environmental
Justice Concerns
3. Facility Density
F. Consistency With the NCP
IV. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review; and Executive Order
14094: Modernizing 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 and Executive Order 14096:
Revitalizing Our Nation’s Commitment
to Environmental Justice for All
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
A list of entities with facilities 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 FINAL RULE
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NAICS 3
111
112
115
211
212
213
221
236
237
238
311
312
313
314
321
322
323
324
325
326
327
NAICS description
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Crop Production.
Animal Production and Aquaculture.
Support Activities for Agriculture and Forestry.
Oil and Gas Extraction.
Mining (except Oil and Gas).
Support Activities for Mining.
Utilities.
Construction of Buildings.
Heavy and Civil Engineering Construction.
Specialty Trade Contractors.
Food Manufacturing.
Beverage and Tobacco Product Manufacturing.
Textile Mills.
Textile Product Mills.
Wood Product Manufacturing.
Paper Manufacturing.
Printing and Related Support Activities.
Petroleum and Coal Products Manufacturing.
Chemical Manufacturing.
Plastics and Rubber Products Manufacturing.
Nonmetallic Mineral Product Manufacturing.
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TABLE 1—ENTITIES POTENTIALLY AFFECTED BY THE FINAL RULE—Continued
NAICS 3
331
332
333
334
335
336
339
423
424
441
444
447
453
481
486
488
493
511
518
522
531
541
561
562
611
622
624
712
713
811
812
921
924
926
928
NAICS description
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Primary Metal Manufacturing.
Fabricated Metal Product Manufacturing.
Machinery Manufacturing.
Computer and Electronic Product Manufacturing.
Electrical Equipment, Appliance, and Component Manufacturing.
Transportation Equipment Manufacturing.
Miscellaneous Manufacturing.
Merchant Wholesalers, Durable Goods.
Merchant Wholesalers, Nondurable Goods.
Motor Vehicle and Parts Dealers.
Building Material and Garden Equipment and Supplies Dealers.
Gasoline Stations.
Miscellaneous Store Retailers.
Air Transportation.
Rail Transportation.
Support Activities for Transportation.
Warehousing and Storage.
Publishing Industries (except Internet).
Data Processing, Hosting, and Related Services.
Credit Intermediation and Related Activities.
Real Estate.
Professional, Scientific, and Technical Services.
Administrative and Support Services.
Waste Management and Remediation Services.
Educational Services.
Hospitals.
Social Assistance.
Museums, Historical Sites, and Similar Institutions.
Amusement, Gambling, and Recreation Industries.
Repair and Maintenance.
Personal and Laundry Services.
Executive, Legislative, and Other General Government Support.
Administration of Environmental Quality Programs.
Administration of Economic Programs.
National Security and International Affairs.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding affected entities
likely to be regulated by this action.
This table includes the types of entities
that EPA is aware could potentially be
regulated by this action. Other types of
entities not included in the table could
also be regulated. To determine whether
your entity is regulated by this action,
you should carefully examine the
applicability criteria found in § 118.3. If
you have questions regarding the
applicability of this action to a
particular entity, consult the person
listed in the FOR FURTHER INFORMATION
CONTACT section.
B. What action is the Agency taking?
EPA is finalizing new requirements
for Facility Response Plans (FRPs) for
worst case discharges of CWA
hazardous substances from onshore
non-transportation related facilities
(hereafter, covered facilities or facility)
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 final rule 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 incremental costs and
benefits of this action?
EPA estimated the total incremental
costs of the final action by combining
the per-covered facility estimates of
compliance costs with the estimate of
the affected covered facility universe.
EPA estimated the annualized cost of
the final rule over a 20-year analysis
period, using three percent and seven
percent discount rates, as presented in
Table 2.
TABLE 2—TOTAL INCREMENTAL COMPLIANCE COST OF THE FINAL ACTION, ANNUALIZED
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[2022$]
Present value,
7%
Annualized cost,
7%
Present value,
3%
Annualized cost,
3%
Facility Cost .....................................................................
Agency Cost ....................................................................
$1,120,290,646
70,880,205
$105,747,512
6,690,590
$1,641,867,861
101,561,496
$110,359,310
6,826,528
Total Cost .................................................................
1,191,170,851
112,438,102
1,743,429,357
117,185,838
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The final action is expected to have a
mitigating effect on CWA hazardous
substance worst case discharges because
the rule provisions address the
categories of damages and adverse
impacts expected from this type of
discharge. The planning activities
associated with developing FRPs are
likely to mitigate several damage
categories through pre-discharge
planning and identification of potential
receptors and applicable endpoints; the
emergency response information
provision; descriptions of discharge
detection systems, hazard evaluation,
and training programs; and drills and
exercises. Quantifying the costs and
benefits of this action is challenging due
to a lack of data around the likelihood
of a worst case discharge in the baseline,
the universe of potentially regulated
facilities, costs of program elements,
historical discharges, baseline
compliance behavior, and the degree to
which the final action will mitigate the
probability and severity of worst case
discharges. Despite the numerous
uncertainties associated with estimating
the benefits of the final action
quantitatively, information on previous
worst case discharges of a similar nature
suggests that the benefits of mitigating
these discharges could be large relative
to the final rule’s estimated cost.
Chapters 5 and 6 of the final rule
Regulatory Impact Analysis (RIA)
developed for this action provide
additional details on costs and benefits,
respectively. This analysis, ‘‘Regulatory
Impact Analysis: Clean Water Act
Hazardous Substance Facility Response
Plans,’’ is available in the docket.
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E. List of Abbreviations and Acronyms
ACP Area Contingency Plan
ANFO ammonium nitrate-fuel oil
APA Administrative Procedures Act
BLS United States Bureau of Labor
Statistics
CAA Clean Air Act
CAS Chemical Abstracts Service
CBI Confidential Business Information
CFR Code of Federal Regulations
CERCLA Comprehensive Environmental
Response, Compensation, and Liability Act
of 1980
CFATS Chemical Facility Anti-Terrorism
Standards
CRA Congressional Review Act
CWA Clean Water Act
DHS United States Department of
Homeland Security
DOI United States Department of the
Interior
E.O. Executive Order
EPA United States Environmental
Protection Agency
EPCRA Emergency Planning and
Community Right-to-Know Act
ERAP Emergency Response Action Plan
FBI Federal Bureau of Investigation
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FR Federal Register
FRP Facility Response Plan
FRS Facility Registry Service
FWSE Fish, Wildlife, and Sensitive
Environments
GIUE Government-Initiated Unannounced
Exercises
HAZWOPER Hazardous Waste Operations
and Emergency Response
ICP Integrated Contingency Plan
ICR Information Collection Request
IPAWS
Integrated Public Alert & Warning
System
LC50 Lethal Concentration 50%
LEPC Local Emergency Planning Committee
MCL Maximum Contaminant Level
MOU Memorandum of Understanding
MTR Marine Transportation-Related
NAICS North American Industry
Classification System
NCEI National Centers for Environmental
Information
NCP National Contingency Plan
NOAA National Oceanic and Atmospheric
Administration
NPDES National Pollutant Discharge
Elimination System
NPDWR National Primary Drinking Water
Regulations
NPRM Notice of Proposed Rulemaking
NRC National Response Center
NSFCC National Strike Force Coordination
Center
O&M Operations and Maintenance
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSC On-Scene Coordinator
OSHA Occupational Safety and Health
Administration
POTW Publicly Owned Treatment Works
PRA Paperwork Reduction Act
PREP Preparedness for Response Exercise
Program
PSM Process Safety Management
PWS Public Water System
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
SDWA Safe Drinking Water Act
SDWR State Drinking Water Regulations
SERC State Emergency Response
Commission
SPCC Spill Prevention Control and
Countermeasure
SRO Spill Response Organization
SWPA Source Water Protection Area
TBD Technical Background Document
TEPC Tribal Emergency Planning
Committee
TRI Toxics Release Inventory
TSDF Treatment, Storage, and Disposal
Facility
U.S.C. United States Code
UMRA Unfunded Mandates Reform Act
USCG United States Coast Guard
USDOT United States Department of
Transportation
UST Underground Storage Tank
WOTUS Waters of the United States
ZOC Zone of Concern
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II. 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)).
The statute defines a covered facility as
‘‘. . . [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, 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
Executive Order (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:
(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 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 pursuant to the
CWA (33 U.S.C. 1321(j)(5)(E)) for this
action for facilities that could
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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,
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 ACPs are required and under
relevant FRPs (33 U.S.C. 1321(j)(7)).
EPA intends that the provisions of the
rule be severable. In the event that any
individual provision or part of the rule
is invalidated, EPA intends that this
would not render the entire rule invalid,
and that any individual provisions that
can continue to operate will be left in
place. The rule contains many discrete
provisions that operate independent of
each other. For example, the screening
criteria are designed to provide an
initial, relatively bright line for
identifying covered facilities that do not
need to engage in any further
applicability determination. That is
independent of the criteria that actually
determine whether a covered facility
could cause substantial harm to the
environment from a worst case
discharge into or on the navigable
waters or a conveyance to navigable
waters. Thus, the rule would still satisfy
the statutory requirements if the onehalf mile distance screening criterion
were struck down. Similarly, the four
substantial harm criteria are
independent of one another, and
covered facility owners and operators
could still conduct a substantial harm
analysis to determine whether an FRP is
required absent any one substantial
harm criterion. Likewise, if the
provisions regarding Regional
Administrator (RA) determinations were
struck down, the rule would still meet
statutory requirements and fulfill its
purpose. Furthermore, while there are
many different components of an FRP,
they serve different functions and are
independent requirements.
2. Delegation of Authority
Under E.O. 12777 (56 FR 54757,
October 18, 1991), EPA was delegated
the authority to regulate nontransportation-related onshore facilities
and non-transportation-related offshore
facilities landward of the coastline. The
U.S. Department of Transportation
(USDOT) was the delegated authority
for transportation-related facilities and
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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 memorandum of
understanding (MOU) between EPA, the
U.S. Department of the Interior (DOI),
and USDOT (59 FR 9494, February 28,
1994). DOI redelegated 33 U.S.C.
1321(j)(5) authority to regulate nontransportation-related offshore facilities
landward of the coastline to EPA. This
MOU applies to both oil and CWA
hazardous substance facilities.
EPA has delegated authority over
offshore facilities landward of the
coastline as per 40 CFR part 112
Appendix B. However, this final action
is limited to non-transportation-related
onshore facilities as defined in the
consent decree described below.
B. 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 the CWA section
311(j)(5)(A)(i) and the Administrative
Procedures Act (APA).1 The first claim
alleged that EPA failed 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 . . .
[which] constitutes a failure to perform
a non-discretionary duty or act in
violation of the [CWA].’’ The second
claim alleged, ‘‘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, Plaintiffs and EPA
entered discussions regarding a
potential resolution of the lawsuit.
The plaintiffs and EPA entered into a
consent decree on March 12, 2020,
which resolved the claims of the suit.2
The consent decree requires that within
two years (24 months) of entry into the
consent decree, i.e., by March 12, 2022,
1 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).
2 Envtl. Justice Health All. for Chem. Reform v.
U.S. EPA, Case1:19–cv–02516–VM, Document 32
(S.D.N.Y., filed March 12, 2020).
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EPA 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 half years, or 30 months after
publication of the proposal. On March
28, 2022 (87 FR 17890), EPA proposed
to require planning for worst case
discharges of CWA hazardous
substances for onshore nontransportation-related facilities. This
final action satisfies EPA’s second
obligation under the consent decree.
C. Proposed Rule
On March 28, 2022, EPA proposed to
require planning for worst case
discharges of CWA hazardous
substances for onshore nontransportation-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, with a 60-day comment
period, which was later extended to 120
days. EPA proposed that FRPs must (1)
be consistent with the NCP and ACPs;
(2) identify the QI 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;
(3) 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) describe the training,
equipment testing, periodic
unannounced drills, and response
actions of persons at the covered
facility; (5) be reviewed and updated
periodically and resubmitted to the RA
for approval of each significant change.
In developing CWA hazardous
substance worst case discharge plan
components, EPA considered existing
requirements for the Oil Pollution
Prevention FRP regulation under 40
CFR 112.20 given that these
requirements have been in place since
1994 and were promulgated under the
same statutory authority as the proposal.
Notwithstanding the differences
between CWA hazardous substances
and oil, EPA understands that, where
possible, there is value to having a high
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level of consistency between similar
regulatory programs. Even if this rule
applies to a different set of regulated
entities, there will be synergy among
local responders, States, and others,
such as spill response organizations
(SROs) and consultants, that have
experience with worst case discharge
planning. Invariably, the experience of
implementing and complying with the
Oil Pollution Prevention FRP regulation
will make this rule easier to comply
with, understand, and implement.
Additionally, EPA examined elements
under the Risk Management Plan (RMP)
regulation under 40 CFR part 68, which
implements section 112(r)(7) of the
Clean Air Act (CAA) and requires
facilities that use regulated substances
to develop an RMP. Specific CWA
hazardous substance FRP components
in the proposed rule included: 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, and
coordination activities.
Eight commenters requested a 60-day
extension to submit comments. In
response, EPA extended the original
comment period an additional 60 days,
to July 26, 2022. EPA received a total of
220 unique comments: 59 organization
comments from 53 unique
organizations, 158 private citizens, and
3 mass mailer campaigns representing a
total of 29,860 signatories.
III. This Action
After issuing its proposal, EPA
received comments on numerous issues
relating to:
1. General comments;
2. Costs and benefits of various
regulatory provisions;
3. Background analyses; and
4. Proposed provisions.
EPA has structured this document to
address these issues and discuss each
proposal element, related significant
comments, and how any changes EPA
considered are reflected in the final
rule.
A. General Comments
As discussed above in Section II.A.1
of this preamble, Congress directed EPA
to issue regulations to address worst
case discharges for both oil and CWA
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hazardous substances, providing clear
and unambiguous authority for this
action. While some commenters
asserted that the Agency has the
authority to decide not to proceed with
the rulemaking and questioned the data
analysis supporting this action,
including the breadth of the potentially
regulated community, EPA has judged
the underlying data as sufficient to
warrant a regulatory program as detailed
in the RIA, available in the docket.
While worst case discharges historically
may be rare, that in and of itself is not
a rationale for not planning for a worst
case discharge. This is especially true
given trends in natural disasters in the
US, with more than $1 trillion in
damage from 2016–2022,3 illustrating
that planning for severe weather events
is critical as they become more common
and intense and reflecting the long term
challenges posed by climate change.4
Additionally, the requirements follow
the statutory directives set forth in 33
U.S.C. 1321(j)(5)(D). Indeed, OPA 90 is
clear in directing the President to
promulgate regulations for worst case
discharges of CWA hazardous
substances, regardless of the number of
facilities that may be ultimately
regulated. EPA is following the same
approach as the Oil Pollution
Prevention FRP regulation, which was
promulgated under the same statutory
authority, and as such disagrees with
commenters who argued that the
proposal represents administrative
overreach. Worst case discharge
planning provisions will appropriately
place response planning responsibilities
on covered facility owners and
operators, as is clearly the Congressional
intent, as per the OPA 90 Conference
Report, while enumerating EPA’s role in
oversight and enforcement.
EPA notes that in March 2000, USCG
published a notice of proposed
rulemaking (NPRM) in the Federal
Register entitled ‘‘Marine
Transportation-Related Facility
Response Plans for Hazardous
Substances’’ (65 FR 17416, March 31,
2000) under the same CWA authority as
this final rule. USCG then withdrew that
rulemaking in February 2019 (84 FR
2799). Given that nearly 20 years
elapsed between the proposal and
3 National Oceanic and Atmospheric
Administration (NOAA) National Centers for
Environmental Information (NCEI). (2023). U.S.
Billion-Dollar Weather and Climate Disasters.
https://www.ncei.noaa.gov/access/billions/, DOI:
10.25921/stkw–7w73.
4 U.S. Global Change Research Program
(USGCRP). (2017). Climate Science Special Report:
Fourth National Climate Assessment, Volume I,
Chapter 7: Precipitation Change in the United
States. https://science2017.globalchange.gov/
chapter/7/.
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withdrawal, it is unsurprising that
USCG found the proposed rule was no
longer appropriate to the current state of
spill response in the chemical industry.
USCG also noted that their NPRM may
overlap with existing local and State
regulatory schemes as well as current
industry practice. EPA has reviewed
USCG’s actions, reports, and findings.
EPA did not find sufficient overlap for
onshore non-transportation-related
facilities to justify not promulgating this
regulation as per Chapter 2 of the
Technical Background Document (TBD),
available in the docket. Finally, to
commenters who pointed to the no
action final rule under CWA 311(j)(1)(C)
(84 FR 46100, October 3, 2019), that
rulemaking is outside the scope of this
final rule and the Agency conclusion
there has no bearing here.
EPA disagrees with commenters who
asserted they were not adequately
notified as per the APA. The proposal
was clear and the comment period was
ample. Indeed, the Agency extended the
comment period to 120 days from 60
days to accommodate commenters who
requested additional time (87 FR 29728,
May 16, 2022).
Several commenters noted that the
rule does not fully define ‘‘waters of the
United States’’ (WOTUS) and that this
causes the term ‘‘navigable waters’’ to be
‘‘very ambiguous.’’ The commenters
highlighted a related and, at the time,
pending Supreme Court decision and
EPA rulemaking that would ultimately
clarify these concerns. These
commenters stressed the importance of
holding off from any final rulemaking
until the court decision is issued or
navigable waters is more clearly defined
while additional commenters
recommended EPA release a
supplementary proposed rule once
‘WOTUS’ and ‘navigable waters’ are
clearly defined.
EPA disagrees with the comment.
Following the Supreme Court’s May 25,
2023, decision in Sackett v.
Environmental Protection Agency, 143
S. Ct. 1322 (2023), the EPA and
Department of the Army developed a
rule to amend the final ‘‘Revised
Definition of ‘Waters of the United
States’’’ rule consistent with Sackett (88
FR 61964, Sept. 8, 2023).
EPA has determined that the rule
should cite to the definition in 40 CFR
120.2 to determine whether a particular
water is a water of the United States, as
opposed to establishing a separate
definition. The revised definition
provides clarity and citing to this
definition will ensure consistency with
the Supreme Court’s decision in
Sackett, as well as ensuring greater
understanding and consistency
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nationwide. Because this definition is
also used by other regulatory programs,
it provides the greatest amount of
information and experience regarding
its applicability. The Agency disagrees
with commenters who asserted that this
definition is prohibitively technical or
costly; and notes that the September
2023 definition, issued following
Sackett, covers fewer waters than the
rule that was in place at the time
comments were received. In sum, it is
the Agency’s position that the regulated
community has sufficient information to
determine whether they are more than
one-half mile from navigable waters or
a conveyance to navigable waters such
that they are not subject to the rule.
Doing so, as some commenters suggest,
could inadvertently inject unintended
ambiguities or questions about
applicability, causing more uncertainty,
not less.
Finally, EPA acknowledges concerns
raised about the impact of litigation and
court rulings on post-2015 definitions of
‘‘waters of the United States,’’ and a
resulting patchwork of definitions
across the country. Needless to say, this
is a different rule and while EPA
recognizes that due to ongoing litigation
there is variation among jurisdictions as
to which definition of ‘‘waters of the
United States’’ governs, e.g., using the
pre-2015 definition in the SPCC context,
presumably at some point the litigation
will be resolved resulting in national
consistency and, in any event,
introducing another variation would do
nothing to advance national
consistency. To the contrary, codifying
yet another definition would introduce
more complexity within every
jurisdiction by requiring regulated
entities that need to comply with
different CWA regulations to navigate
two different definitions within that
jurisdiction. Thus, even if currently
there is variation with respect to which
definition (pre- or post-2015) applies in
different jurisdictions, there is merit to
having the definition be consistent for
regulated parties within their
jurisdiction for purposes of the CWA
(see Operative Definition of Waters of
the United States chart at: https://
www.epa.gov/wotus/definition-watersunited-states-rule-status-and-litigationupdate).
B. Costs and Benefits of Various
Regulatory Provisions
EPA estimated the total costs of the
final action by combining the percovered facility estimates with the
estimate of the affected facility universe.
To provide information about the scale
of costs that covered facilities will
incur, EPA compiled estimates of unit
compliance costs for each of the
program elements in the final action.
EPA developed unit burden estimates
for individual elements of the response
21929
plan on a first- and subsequent-year
basis. EPA also estimated the extent of
baseline compliance for facilities subject
to the rule due to the overlap in
facilities and program elements in the
existing Oil Pollution Prevention FRP,
RMP, and Resource Conservation and
Recovery Act (RCRA) regulatory
requirements, as these three regulations
have the most significant crossover. EPA
estimated an average compliance cost
per covered facility after accounting for
baseline compliance with existing
regulations by multiplying labor rates
and unit burdens.
EPA has prepared and posted in the
docket an RIA of the potential costs and
benefits associated with this action. As
presented in Chapter 5 of that analysis,
EPA estimated the final rule will result
in total annualized costs of 112.4 to
117.2 million per year, at 7 percent and
3 percent discount rates, respectively.
This cost includes 92.0–93.5 million for
existing covered facilities to comply,
13.7–16.9 million for projected new
covered facilities to comply in the
future, and 6.7–6.8 million for the
Agency to administer the regulations.
Table 3 and Table 4 present the
estimated costs of the final rule by FRP
program component for covered
facilities and the Agency, respectively.
See Chapter 6 of the final rule RIA for
additional details regarding benefits of
the final action.
TABLE 3—TOTAL COST OF THE FINAL ACTION, FACILITIES, ANNUALIZED (2022)
Present value,
7%
Response plan requirements
Annualized cost,
7%
Present value,
3%
Annualized cost,
3%
Facilities completing the substantial harm certification only
Rule Familiarization .........................................................
Substantial Harm Certification Form ...............................
$2,840,473
51,660,843
$268,121
4,876,418
$2,950,783
57,916,345
$198,339
3,892,888
Subtotal, Substantial Harm Certification Form only
facilities .................................................................
54,501,316
5,144,539
60,867,128
4,091,227
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Facilities developing FRPs
Rule Familiarization .........................................................
Substantial Harm Determination ......................................
Facility and Owner Information ........................................
Emergency Response .....................................................
Hazard Evaluation ...........................................................
Discharge Detection ........................................................
Response Actions, Disposal, and Containment ..............
Drills & Exercises .............................................................
LEPC/TEPC Coordination ...............................................
Training ............................................................................
FRP Amendments ...........................................................
ERAP ...............................................................................
2,120,519
38,419,664
1,234,121
501,508,344
16,929,190
1,456,263
7,407,466
253,557,291
46,538,057
3,597,780
38,554,948
9,234,533
200,162
3,626,544
116,492
47,338,840
1,597,996
137,461
699,212
23,934,015
4,392,863
339,605
3,639,314
871,675
2,202,869
43,071,820
1,383,558
730,536,570
18,979,110
1,632,598
8,304,421
376,924,100
69,523,895
4,670,568
59,705,771
13,347,586
148,067
2,895,103
92,997
49,103,533
1,275,694
109,736
558,188
25,335,220
4,673,098
313,936
4,013,166
897,167
Subtotal, FRP facilities .............................................
920,558,174
86,894,179
1,330,282,867
89,415,904
Subtotal, Existing Facilities .......................................
975,059,491
92,038,718
1,391,149,995
93,507,131
Subtotal, Projected New Facilities ............................
145,231,155
13,708,794
250,717,866
16,852,179
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TABLE 3—TOTAL COST OF THE FINAL ACTION, FACILITIES, ANNUALIZED (2022)—Continued
Present value,
7%
Response plan requirements
Grand Total, Facilities .......................................
1,120,290,646
Annualized cost,
7%
105,747,512
Present value,
3%
1,641,867,861
Annualized cost,
3%
110,359,310
TABLE 4—TOTAL COST OF THE FINAL ACTION, THE AGENCY, ANNUALIZED (2022)
Annualized cost,
7%
Annualized cost,
3%
Review Existing Facility Plans .........................................................................................................................
Review New Facility Plans ..............................................................................................................................
Government-Initiated Unannounced Exercises (GIUEs) and Inspections ......................................................
FRP Amendments ...........................................................................................................................................
IT/Data Management and Integration ..............................................................................................................
$1,359,732
345,366
3,846,625
289,529
849,339
$1,126,250
389,990
4,141,097
311,693
857,498
Total ..........................................................................................................................................................
6,690,590
6,826,528
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Agency cost
The benefits of the final action are
assessed qualitatively and include a
wide diversity of potential benefit
mechanisms, such as reductions in
impacts to public water systems (PWS)
and 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. These benefits
include prevention of economic loss in
value of homes near discharges 5 and the
economic losses to communities
affected by a discharge. See Chapter 6 of
the final rule RIA for additional details
regarding benefits of the final action.
The Agency disagrees with
commenters who assert that EPA has
underestimated costs. EPA recognizes
commenters’ concern that covered
facility owners or operators will need to
spend some resources to determine
whether they meet the initial screening
criteria, and for those that do,
potentially significantly more resources
and time determining whether they
meet any of the substantial harm
criteria, preparing an FRP including indepth hazard evaluations, and
potentially revising the FRP. The
Agency has accounted for these costs, as
well as all other aspects of the
regulatory program in Chapter 5 of the
final RIA.
The Agency proposed that if the
maximum capacity onsite exceeds
10,000x the reportable quantity (RQ), a
covered facility meets the threshold
quantity screening criterion. While EPA
proposed a 10,000x RQ multiplier, the
5 Burton, K., Maas, A., and Lee, K. (2022). A Case
Study in Contamination: Persistent Home Value
Losses Associated with the Elk River Spill. https://
jareonline.org/articles/a-case-study-incontamination-persistent-home-value-lossesassociated-with-the-elk-river-spill/).
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Agency has determined that a 1,000x
RQ multiplier will more appropriately
screen for covered facilities that could
cause substantial harm to the
environment from a worst case
discharge of a CWA hazardous
substance, to fully address the range of
potential releases that merit worst case
discharge planning and response. This
results in substantially more covered
facilities having to determine whether
they are subject to the planning
requirements of the rule, i.e., meet the
initial screening criteria in the first
instance, and analyzing the substantial
harm criteria. The Agency also revised
the economic analysis for the final rule,
estimating annualized costs for
regulated facilities of approximately 117
million per year, as documented in
section 5.5 the final RIA.
EPA estimated the total costs of the
final action by combining per-facility
estimates with the estimate of the
affected facility universe. To provide
information about the scale of costs that
covered facilities would incur, EPA
compiled estimates of unit compliance
costs for each of the program elements
in the final action. EPA developed unit
burden estimates for individual
elements of the response plan on a firstand subsequent-year basis. EPA
calculated the annualized total cost to
regulated facilities of the final action
over a 20-year analysis period, using the
three percent and seven percent
discount rates.
The Agency also notes that the
majority of labor burden for regulated
facility staff are estimated using labor
rates of $93.50 and $70.84, based on
U.S. Bureau of Labor Statistics (BLS)
wage data. The Agency also recognizes
the role of consultants in facility
planning efforts. This cost is accounted
for as an annually recurring cost of
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$18,471 per facility for contractor
support.
C. Background Analyses
1. CWA Hazardous Substance Discharge
History And Impacts Analysis
EPA maintains that it has sufficient
data to support the need for this final
rule. As detailed in the final rule RIA,
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 24hour period. 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.
While EPA’s analysis of NRC data
shows a decline in the average number
of CWA hazardous substance discharges
from 2010 to 2019, past discharge
history is not a guarantee of future
outcomes, nor does the number of
discharges definitively indicate the level
of impact of those discharges. Thus, it’s
possible that a smaller number of higher
consequence discharges could cause
more adverse impacts due to the
circumstances of the incident.
Moreover, NRC data are a starting point
for further analysis to inform CWA
hazardous substance worst case
discharge occurrences. Based on past
experiences of oil and chemical spills,
EPA has observed data gaps with NRC
reports, but continues to improve oil
and CWA hazardous substance spill
data as incidents progress through
regional and EPA Emergency Operation
Center reporting. Furthermore, NRC
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data is the most complete dataset
available, and it does show that CWA
hazardous substance discharges to water
continue to occur. Accordingly, EPA has
determined that worst case discharge
planning regulations for CWA
hazardous substances are critical to
protect the environment, keep our
waterways safe and clean, and protect
human health.
While 10 CWA hazardous substances
account for most of the CWA hazardous
substance discharges reported to the
NRC, as detailed in section 3.1 of the
RIA, these data often lack the names and
quantities of chemicals discharged, and
do not reflect future probabilities of
release. Also, the frequency of reported
releases does not reflect the impacts that
could occur with a worst case discharge.
While some commenters suggested
narrowing the number of CWA
hazardous substances covered by the
rule, changing the list of CWA
hazardous substances in 40 CFR part
116 is outside the scope of this action.
Moreover, EPA has no reliable
information to support the commenter
claim that the industry is already
devoting the necessary resources and
capabilities to prevent and respond to
discharges that may reach navigable
waters or a conveyance to navigable
waters. And even if there is any merit
to the commenter’s assertion, that
would generally serve to change the
baseline, mitigating the impact of this
rule, and not a reason to have no rule
or even the playing field between those
that are responsibly planning for such
events and those that are not. In any
case, EPA intends to work
collaboratively with industry to ensure
robust response plans for CWA
hazardous substance worst case
discharges into or on navigable waters
or a conveyance to navigable waters that
could cause substantial harm to the
environment. Additionally, while this
final regulation does not address the
causes of worst case discharges, it does
require comprehensive response
planning regardless of how a CWA
hazardous substance discharge occurs.
By focusing on covered facilities within
one half mile to navigable waters or a
conveyance to navigable waters and
above the threshold quantity that also
meet one or more proposed substantial
harm criteria, the final regulation will
appropriately ensure robust planning for
covered facilities that pose the highest
risk of causing substantial harm to the
environment.
2. Analysis of Existing Programs/
Technical Background Document
In sum, EPA’s analysis found few
Federal programs that comprehensively
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cover all the CWA section 311(j)(5)(D)
requirements for all CWA hazardous
substances. While CWA hazardous
substance covered facilities subject to
the Oil Pollution Prevention Program
FRP requirements or RMP regulations,
among others, have some overlap for the
required program elements, those
programs do not cover all requirements
in CWA section 311(j)(5)(D) for CWA
hazardous substances. EPA also
recognizes commenter feedback that
industry guidance and voluntary
programs are valuable resources for
ensuring safe, protective practices.
However, those practices are not
enforceable nor required and do not
fulfill the statutory requirements of this
action. In addition, EPA acknowledges
State programs may be comprehensive
for CWA hazardous substance worst
case discharge planning. The Agency
agrees with commenters who stated that
duplicative requirements should be
avoided and refers the commenters to
Chapter 2 of the TBD for more
information and analysis. As such, a
regulated facility owner or operator may
augment an existing plan with the
requirements of this rule or use an
Integrated Contingency Plan (ICP)
approach, such as One Plan, which will
reduce the administrative burden.
However, an owner or operator may not
assume they are compliant with this
regulation due to their compliance
under other programs (e.g., the Oil
Pollution Prevention FRP regulation,
RMP regulation). See the Response to
Comments document for specific
responses to each program, in the
docket for this action. Please see section
III.D.7 of this Preamble for a discussion
of exemptions.
D. Rule Provisions
1. Definitions
Some commenters requested that EPA
revise its definitions of key terms. EPA
has considered these comments
carefully as is committed to providing
clarity throughout this action.
i. Adverse Weather
EPA considered comments advocating
that the definition of ‘‘adverse weather’’
should be revised. To the extent that
commenters are concerned with
‘‘ambiguity,’’ it seems largely because
they are interested in narrowing the
definition to a limited number of clearly
delineated events. However, the
definition is intentionally broad and
meant to capture the wide range of
potential weather changes and
conditions due to the nation’s varying
regional weather patterns. Prescribing
specific types of events or adverse
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21931
weather conditions is unrealistic and
does not represent the myriad
challenges facing our nation due to
climate change. EPA also disagrees with
commenters who asserted that the
breadth of this definition will cause
uneven implementation of the final rule;
rather, it will allow covered facility
owners or operators and local
emergency planners to consider the full
range of potential adverse weather
events, taking into consideration
varying local and regional weather
patterns (current and future), that could
impact the covered facility and affect
worst case discharge response planning
as well as changing conditions and
emerging threats such as the widening
impact of extreme heat. For example,
while specific events, such as ‘‘20-year
storm conditions’’ may be useful as one
type of climatological condition to
consider in one region, EPA agrees that
it is equally important to consider
effects of, for example, increased
drought or lack of rain activity in other
regions and the effects on a potential
worst case discharges of CWA
hazardous substances. As such, EPA has
added language describing some types
of climate change impacts that may
need to be considered when accounting
for adverse weather conditions during a
worst case discharge of CWA hazardous
substances into or on the navigable
waters or a conveyance to navigable
water, such as the increased frequency
and intensity of adverse weather,
temperature fluctuations, rising seas,
storm surges, inland and coastal
flooding, drought, wildfires, and
permafrost melt in northern areas.
EPA chose to define ‘‘adverse
weather’’ in this final rule differently
from the Oil Pollution Prevention
regulation definition of adverse weather
found in 40 CFR 112.2 due to the
variance in physicochemical properties
among oil and the 296 CWA hazardous
substances as well as how different
types of adverse weather may impact
the analysis of appropriate response
actions for those myriad CWA
hazardous substances. This is another
reason why a broad definition of
‘‘adverse weather’’ is appropriate for
this rule.
EPA recognizes that, given the
increased probability of extreme
weather events, historic incidents are
becoming less of a predictor of future
effects. Compliance assistance will be
available to aid owners or operators in
determining the appropriate types and
severity of weather events, sea level rise,
drought, flooding, heat, wildfire, and
subsidence risk, etc., to consider for
their worst case discharge in adverse
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weather, as well as references and data
sources.
ii. Container
While several commenters noted that
the definition of ‘‘container’’ is not
consistent with the Oil Pollution
Prevention regulation in 40 CFR 112.2
and that there is no corresponding
definition in this action for ‘‘bulk
storage container.’’ The primary reason
for this is because the two regulations
do not cover the same substances.
Additionally, while the Oil Pollution
Prevention regulation has determined
that a 55-gallon de minimis container
size is appropriate, as noted by
commenters, this is not the case for
CWA hazardous substances. To the
contrary, certain CWA hazardous
substances have been determined that
they ‘‘may be harmful’’ at quantities as
low as one pound. Accordingly, a 55gallon container size would be an
inappropriate de minimis amount for all
substances because smaller containers
may contain hazardous levels of
substances that could cause substantial
harm in the event of a worst case
discharge, especially when aggregated.
Additionally, CWA hazardous
substances are stored in a wide variety
of containers, and CWA hazardous
substances are typically measured and
regulated 6 by mass (e.g., pounds), not
volume (gallons), underscoring why a
55-gallon de minimis container standard
would be unsuitable. Because of the
variation of the chemical properties,
including toxicity, of CWA hazardous
substances, EPA has no basis for setting
a de minimis container size at 55gallons or any other level, including the
RQ level, as suggested by some
commenters. Furthermore, the OPA
Conference Report states that ‘‘. . . the
selection criteria should not necessarily
omit those smaller facilities that are
near major water supplies or that are
near environmentally sensitive areas.’’
(H.R. Rep. No. 101–653, 10lst Cong., 2d
Sess., p.151.). Threshold determinations
must consider all CWA hazardous
substance present at the covered facility
in the aggregate, but without
consideration to container size or
capacity because the maximum quantity
onsite may contribute to the potential
harm posed by a covered facility.
Finally, two commenters asked for
additional examples of containers.
Accordingly, EPA notes that containers
may consist of a rail car or other mobile
storage not under active shipping
papers, process vessel, canister, drum,
6 EPCRA Reporting Rule (40 CFR part 370), RMP
regulation (40 CFR part 68), DHS CFATS (6 CFR
part 27), OSHA’s PSM (29 CFR 1910.119).
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bulk storage tank, dumpster, tote, or
bulk cargo container positioned on land,
among other things. For the reasons
enumerated above, EPA is finalizing the
definition of container as proposed.
iii. Conveyance to Navigable Waters
EPA considered whether to include a
rule-specific definition for ‘‘conveyance
to a navigable waterway.’’ EPA is aware
that the CWA definition of ‘‘point
source’’ at 33 U.S. Code § 1362(14) uses
the term conveyance and includes some
examples. However, EPA determined
that cross-referencing that description of
conveyance, with its specific
exclusions, would not be appropriate for
this rule. In this rule, conveyances are
a critical consideration in a facility’s
worst case discharge scenarios because
a straight-line analysis may overlook an
opportunity to travel via pipe or open
channel that could more easily enter
navigable waters. Indeed, the concern is
not particular types of structures or
pathways (and categorizing them) but
that a conveyance to navigable waters
can result in a more immediate
discharge to navigable waters.
Moreover, while there are some broad
categorical generalizations that can be
made about what constitutes a
conveyance to navigable waters, there
are factual elements that necessarily
make the determination a case-by-case
determination (even if most of the time
it will be straightforward, if not
obvious), i.e., where identifying
particular types of conveyances will not
suffice or capture the variations that
exist in the real world.
In any case, in terms of a definition,
conveyance is meant to have its normal
English language definition and usage.
That said, consistent with having the
elements of the initial screen be
relatively straightforward, EPA is
clarifying that it considers a conveyance
to navigable waters in the context of this
rule to be a means of transport that
provides a direct pathway to navigable
waters. In the majority of cases, a means
of transport will be discernible,
confined, and discrete, and thus will
present a straightforward factual
scenario. Some examples are a storm
drain, pipe, or channel that discharge
directly into navigable waters.
A few commenters had categorical
questions about types of structures or
features such as a dry gulch, a wellhead,
subsurface water or even groundwater.
While EPA could make some
generalization that it does or does not
expect that any of these examples would
serve as a means of transport, the reality
is there will inevitably be situations
where it will depend on the specific
facts to determine whether a given
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structure or feature (no matter what it is
called) serves as a means of transport to
navigable waters. Finally, given the
purpose of the rule, EPA disagrees that
the inclusion of a means of transport
that could result in a more immediate
discharge to navigable waters in the
initial screen (and in some cases may
require some analysis), makes the reach
or scope of the rule ‘‘unbounded.’’
iv. Distance to Endpoint
EPA is adjusting the definition of
distance to endpoint for clarity and to
reflect that the distance represents the
greatest distance a CWA hazardous
substance can travel in a worst case
discharge to navigable waters or a
conveyance into or on the navigable
waters while still being able to cause
injury to fish, wildlife, or sensitive
environments (FWSE) or public
receptors, or adversely impact a PWS.
v. Endpoint
Accordingly with the definition of
distance to endpoint above, EPA is
adjusting the definition of endpoint to
clarify that it represents the
concentration at which a worst case
discharge of a CWA hazardous
substance into or on the navigable
waters has the ability to cause injury to
FWSE or public receptors, or adversely
impact a PWS.
vi. Facility
Some commenters asserted that the
definition of ‘‘facility’’ is unclear while
others were concerned about the
possibility of gamesmanship in drawing
facility boundaries. EPA is adjusting the
definition to reflect the Preamble to the
proposed rule, that stated that an owner
or operator may not make
determinations as to what constitutes a
covered facility indiscriminately and in
such a manner as to simply avoid
applicability of the final 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 maintains that
the flexibility afforded to owners or
operators in determining what
constitutes a covered facility allows
those most knowledgeable about its
operations to decide whether it should
be aggregated or divided, which may
vary widely due to the range of CWA
hazardous substance operations and
types of facilities. Furthermore, EPA
notes that it is adopted from the Oil
Pollution Prevention regulation at 40
CFR 112.2, is appropriately broad, and
captures the types of facilities intended
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to be regulated by EPA under CWA
hazardous substance worst case
discharge regulations. Please see the
Response to Comments document in the
docket for further discussion.
EPA has adjusted the definition to
separate out non-transportation-related
onshore facilities for clarity and ease of
navigation in the document.
vii. Injury
Because of the need to maintain
consistency with the NCP, the Agency
has determined it is appropriate to use
the definition of ‘‘injury’’ established by
the Natural Resource Trustees for this
rule. Federal officials authorized by the
President and the authorized
representatives of Indian Tribes and
State and foreign governments act as
public trustees to recover damages to
natural resources under their
trusteeship. Under the NCP, each trustee
has responsibilities for protection of
resources; mitigation and assessment of
damage; and restoration, rehabilitation,
replacement, or acquisition of resources
equivalent to those affected (40 CFR
300.615). EPA maintains that the
definition of ‘‘injury’’ is appropriate to
assess substantial harm based on the
extensive experience of the Natural
Resource Trustees in conducting
evaluations of CWA hazardous
substance impacts on natural resources.
The definition of ‘‘injury’’ in 40 CFR
112.2 of the Oil Pollution Prevention
regulation was adapted from the
definition of ‘‘injury’’ in the DOI Natural
Resources Damage Assessments (NRDA)
final rule at 43 CFR part 11 and includes
only the part of the definition that
addresses oil discharges, which EPA is
now adapting for this regulation to
provide regulatory consistency.
In response to the commenters who
stated that the definition of ‘‘injury’’
could apply to ‘‘insubstantial effects’’
rather than ‘‘substantial harm,’’ EPA
notes that the definition of ‘‘injury’’ is
intended to assist in the identification of
covered facilities that could cause
substantial harm. The potential for a
spill to cause an injury to FWSE or
public receptors is coupled with the
screening criteria to determine if a
covered facility could cause substantial
harm to the environment. In that
context, causing injury indicates the
potential for a worst case discharge to
cause substantial harm to the
environment. EPA concludes that the
injury relies on changes that have been
demonstrated to adversely impact the
resources in question, or services
provided by those resources.
While ‘‘injury’’ to a public receptor as
a concept may be new to the regulatory
community, EPA holds that it is an
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important consideration due to the
variability of CWA hazardous
substances, how they act in water, their
effects on human health and the
environment, and their impact on the
potentially exposed public. EPA agrees
with the commenter who asserted that
just being a measurable effect does not
mean that the effect is ‘‘substantial;’’
however, the endpoints in Appendix B
are not limited to just measurable
effects. Indeed, the endpoints are both
measurable and indicate a covered
facility could cause substantial harm to
the environment due a worst case
discharge into or on the navigable
waters or a conveyance to navigable
waters.
viii. Maximum Quantity Onsite
EPA has revised the definition of
‘‘maximum capacity onsite’’ to
‘‘maximum quantity onsite.’’ This is
based on the decision to use a threshold
quantity based on quantity, not
capacity, discussed below in section
III.D.2.ii. Please note, a covered facility
owner or operator must plan proactively
for future anticipated product onsite
and FRP threshold quantities are based
on the maximum quantity onsite at any
time for each CWA hazardous
substance. For example, a covered
facility with both chlorine and benzene
onsite must consider when those CWA
hazardous substances will be at their
maximum quantity onsite both as to
whether they meet the threshold
quantity and for planning purposes. If
the owner or operator is developing a
plan in January and does not want to
amend their plan in the coming months,
the maximum quantity onsite for
chlorine may occur in March and the
maximum quantity onsite of benzene
may occur in September. For the FRP to
be valid without amendments, it must
plan for the maximum quantities onsite
for each CWA hazardous substance at
any time, so both maximum quantities
onsite, regardless as to whether the
times overlap.
ix. Permanently Closed
EPA is removing the definition of
‘‘permanently closed’’ because a CWA
hazardous substance maximum quantity
onsite, threshold quantity, and worst
case discharge scenario quantities in the
final rule are based on using quantity,
not capacity, discussed below in section
III.D.2.ii.
x. Publicly Owned Treatment Works
EPA is adding a definition for
publicly owned treatment works
(POTW), referring to the existing
definition in 40 CFR 403.3, but
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21933
including federally owned treatment
works for the purposes of this final rule.
xi. Public Receptor
Some commenters suggested that the
definition of ‘‘public receptor’’ is too
broad. However, EPA’s definition of
‘‘public receptor’’ is intentionally so in
order to cover a wide variety of areas
through which the public has access to
navigable waters and could be affected
by a worst case discharge. EPA did not
include first responders in the
definition of public receptor, as one
commenter suggested, because first
responders are covered in a facility and
community’s health and safety plan and
emergency planning.
While this definition is not part of the
Oil Pollution Prevention regulation in
40 CFR part 112, CWA hazardous
substances differ from oil in important
and varied ways and require different
considerations. For instance, certain
CWA hazardous substances may have
no realistic means of recovery once the
substance enters a waterbody, meaning
that receptors must be prepared for and
swiftly notified of the diluted substance
as it travels downstream. As with other
aspects of this rule, EPA intends to
provide compliance assistance to
covered facility owners or operators on
types of areas they should consider
when determining their ability to cause
injury to public receptors.
xii. Public Vessel
EPA did not receive any comments on
the definition of public vessel and has
adjusted the definition to refer to the
definition in section 311(a)(4) of the
CWA. This will provide regulatory
consistency with other CWA programs
and reflect the statutory authority of this
action rather than creating a new
definition just for use in this regulation.
xiii. Vessel
EPA did not receive any comments on
the definition of vessel has adjusted the
definition to refer to the sections
311(a)(4) of the CWA and 101(28) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA). This will
provide regulatory consistency with
other CWA and CERCLA programs and
reflect the statutory authority of this
action, rather than creating a new
definition just for use in this regulation.
xiv. Water Distribution System
EPA has revised the definition for
accuracy and to align with its use in
other EPA programs in order to more
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accurately reflect drinking water system
characteristics.7
xv. Wellhead Protection Area
EPA is adding a definition for
wellhead protection area for consistency
with the Oil Pollution Prevention FRP
regulation and to aid responders in
identifying risks in the event of a worst
case discharge to protect drinking water
sources.
xvi. Worst Case Discharge
Some commenters suggested EPA
change its definition of worst case
discharge; however, EPA concludes that
the current definition is designed to
capture the worst case discharge and
consistent with the statutory authority
of this action. It is worth noting,
however, that discharges in compliance
with NPDES (40 CFR part 122) are not
covered by this regulation. To
commenters concerned with impacts
due to climate change, a largest
foreseeable discharge must already be
evaluated in adverse weather
conditions, including those due to
climate change, which may include
challenging climatic conditions such the
increased frequency and intensity of
extreme weather events, temperature
fluctuations, rising seas, storm surges,
Faclllly has 8
xvii. Other Definitions
EPA did not receive major substantive
comments on the remaining definitions
in § 118.2 and is finalizing them as
proposed, with some separated out for
clarity.
2. Applicability
In 40 CFR 118.3, EPA set forth a twostep applicability process, whereby a
covered facility owner or operator
assesses two screening criteria, and, if
both criteria are met, the owner or
operator then, and only then, assesses
the ability to cause substantial harm to
the environment through four
substantial harm criteria (all described
in detail below). To ensure that EPA
tied the proposed applicability
provisions to the statutory requirements,
the Agency proposed four substantial
harm criteria to target covered facilities
that could cause substantial harm to the
environment by discharging into or on
navigable waters or a conveyance to
navigable waters. Additionally, EPA
proposed location-based criteria (using
both distance from navigable waters or
conveyance and planning distance
calculations) to ensure covered facilities
are regulated based on their location, as
required by statute. In combination with
the screening criteria, EPA determined
that the substantial harm criteria reflect
real world scenarios whereby a worst
case discharge could cause substantial
harm to the environment. Some
commenters raised concerns about the
level of responsibility on owners or
operators to determine if they are
subject to the rule. While EPA staff will
be available to work with facilities and
provide compliance assistance,
consistent with Congressional intent,
the responsibility for safeguarding their
materials and for planning for a worst
case discharge of CWA hazardous
substances into or on the navigable
waters or a conveyance to navigable
waters rests first and foremost with the
covered facility owner or operator (H.R.
Rep. No. 101–653, 101st Cong., 2d Sess.
1990).
Figure 1—Final Applicability Criteria
for CWA Hazardous Substance FRPSubject Facilities
SUbmlt Response Plan
Faellllyis wtthin
0.5 mites to
ExpetienCed a reportable dlsdlatge of CWA
YES
ANO navigable water
YES
HS that reached naVlpble water within the 1 - - - - - - - - 1
...__or_co_-vam:e
_ _ __;--==--......._last_flve_.;.ye_ars
_ _-..,..._..-_ _ _.....,
NO
Plan Implementation
AbHityto adversely Impact publlc water
NO
. . L__~system::___
NO
OR
I•
--------,
1,.,.::-.:_
act!vltles
YES
_J-----,
NO
• consistent wtth NCP/ACPs
• LEPC Coordination
• Designated QI
• CWA HS FRPComponents:
Abllllyto,:::i=::n'::ure and
--L--==:::.:;:;:,;N0;;:::;,:=._..1------,
No submittal of Response Plan, .-pt
at RA discretion
ddrumheller on DSK120RN23PROD with RULES3
i. Example of the Applicability
Determination Process
Below is a detailed discussion of the
applicability determination process in
40 CFR 118.3. The first step is to
complete the screening criteria, which
are to be assessed concurrently; there is
no implied order of which screening
criterion to assess initially, and a
covered facility owner or operator may
choose to examine either their distance
to navigable waters or a conveyance to
navigable waters or threshold quantity
first, whichever is preferable to their
circumstances. In this example, the
NO
Ablllly to cause lnjUry topubllc receptors
owner or operator chooses to determine
if their maximum quantity/quantities
onsite of CWA hazardous substance(s)
meets or exceeds the threshold quantity
first. The aggregate maximum quantity
onsite at any time of benzene (a listed
hazardous substance as found in 40 CFR
116.4) is 15,000 pounds. Since benzene
has an RQ of 10 and the RQ multiplier
is 1,000, the threshold quantity for
benzene is 10,000 pounds. Because the
covered facility’s maximum quantity
onsite exceeds the threshold quantity
for benzene, it meets this screening
criterion. If there are mixtures
containing CWA hazardous substances
YES
onsite, the owner or operator must
follow the requirements regarding
mixtures, as detailed in section III.D.8 of
this preamble. The covered facility
owner or operator then determines
whether it has a maximum quantity
onsite at any time that meets or exceeds
the threshold quantity for each other
CWA hazardous substance onsite and in
mixtures following the same procedure.
Alternatively, if a covered facility does
not have any CWA hazardous
substances that meet the CWA
hazardous substance screening
threshold (1,000x RQ), it need not
7 https://www.epa.gov/dwreginfo/drinking-waterdistribution-system-tools-and-resources.
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• Haurd Evaluation
• Response Planning
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maximum quantity
onstte of 1,000x RQ
ofCWAHS
inland and coastal flooding, drought,
wildfires, and permafrost melt in
northern areas. In addition, EPA refers
commenters to 40 CFR 118.10 and
section III.D.9 of this preamble for more
specific language and discussion on
worst case discharge calculations.
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proceed further with the applicability
determination.
Again, if the covered facility meets
the CWA hazardous substance threshold
quantity screening criterion, the owner
or operator next determines its distance
to navigable waters or a conveyance to
navigable waters. In this instance, the
covered facility boundary or nearest
opportunity for discharge nearest to a
navigable water or a conveyance to
navigable water as assessed using an
online mapping tool is 0.3 miles. Thus,
the covered facility is within one-half
mile of navigable waters or a
conveyance to navigable waters. Since
the covered facility meets both prongs of
the screening criteria, the owner or
operator then determines whether it
meets any of the substantial harm
criteria. If a covered facility is not
within one-half mile of a navigable
waters or a conveyance to navigable
waters, the owner or operator need not
proceed further.
Similar to the screening criteria, there
is no implied order of operations in
determining whether a covered facility
meets any of the substantial harm
criteria, and an owner or operator may
proceed through the criteria as
preferred. However, unlike the
screening criteria (where both prongs
need to be met), if an owner operator
determines that the covered facility
meets one of the substantial harm
criteria, the owner or operator must
submit an FRP to EPA. In addition, the
owner or operator must still assess the
other substantial harm criteria, as it is
important to have a guide to all the
potential areas of impact in the case of
a worst case discharge as well as past
vulnerabilities as shown through
previous reportable discharges.
Therefore, the assessments for all four
criteria must be included in the FRP or
Appendix A: Substantial Harm
Certification Form.
Proceeding through each of the
substantial harm criteria, for the
substantial harm criteria based on
calculating distances to endpoints
(FWSEs and public receptors and the
ability to adversely impact a PWS), EPA
expects that covered facility owners or
operators will need to gather
information related to the CWA
hazardous substances onsite above the
threshold quantity and information
relevant to their fate and transport
following a worst case discharge. This
may include modeling a worst case
discharge scenario under various flow
conditions to obtain the arrival time,
duration, and concentration of the
discharge as it reaches a FWSE, public
receptor, or water intake. Typically, low
flow conditions will result in larger
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peak concentrations of the discharged
substance, and thus could be more
likely to cause substantial harm.
Next, a covered facility owner or
operator determines whether a worst
case discharge of each CWA hazardous
substance with a maximum quantity
onsite above the threshold quantity
could cause injury to FWSE. To
calculate the quantity of a worst case
discharge for each CWA hazardous
substance onsite above the threshold
quantity, the owner or operator
identifies the maximum CWA
hazardous substance container,
interconnected containers, pipe, or
piping system quantity onsite. Then, a
covered facility owner or operator
consults the relevant ACP (available by
contacting their EPA regional office) to
identify FWSE that could potentially be
reached by a worst case discharge. To
calculate planning distance, the owner
or operator must consider the factors for
overland and in water transport detailed
in § 118.10(b)(3)(i) and (ii), as well as
adverse weather conditions in
§ 118.10(b)(3)(iii) and properties of the
CWA hazardous substance in 40 CFR
118.10(b)(3)(iv) or associated aqueous
products. Once an owner or operator
completes the planning distance
calculations, they compare the
concentration-based (i.e., mg/L) results
to the chart in Appendix B to determine
whether a worse case discharge could
cause injury to FWSE.
To determine whether a covered
facility could cause injury to a public
receptor, the owner or operator follows
the same steps as for FWSE, but uses the
appropriate concentration-based (i.e.,
mg/kg) endpoint values found in
Appendix B. To identify public
receptors, an owner or operator may
consult local maps, local authorities,
their Local Emergency Planning
Committee (LEPC) or Tribal Emergency
Planning Committee (TEPC), or any
other available information about 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 into or on the
navigable waters or a conveyance to
navigable waters.
To evaluate whether a worst case
discharge from a covered facility could
adversely impact a PWS, the owner or
operator determines whether a worst
case discharge would result in certain
outcomes as detailed below by working
with potentially affected PWSs. Using
information including properties of
CWA hazardous substances onsite and
information relevant to their fate and
transport arrival time, duration, and
concentration of the discharge as it
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21935
reaches a water intake, the owner or
operator coordinates with downstream
PWSs to determine impacts to the
system and documents that
coordination. If the owner or operator
has made and documented good faith
efforts but is nonetheless unable to work
with the PWS, the covered facility will
use the estimated concentration of the
CWA hazardous substance from a worst
case discharge at the water intake to
assess the potential to adversely impact
a PWS. Specifically, an owner or
operator must assess each of the
following impacts:
—Violation of a National Primary
Drinking Water Standard or State
Drinking Water Regulation: To assess
whether a worst case discharge
violates any National Primary
Drinking Water Regulations (NPDWR)
or State Drinking Water Regulations
(SDWR), a covered facility owner or
operator determines whether the
released CWA hazardous substance,
aqueous products, or a chemical
product that forms when the CWA
hazardous substance reacts with
drinking water treatment chemicals, is
subject to a NPDWR or SDWR, and is
predicted to exceed the maximum
contaminant level (MCL) at the point
of compliance with the NPDWR or
SDWR. For example, benzene is a
CWA hazardous substance and is
subject to a NPDWR with an MCL of
0.005 mg/L measured at the entry
point to the water distribution system.
An example of a chemical product
that could form through a reaction is
the CWA hazardous substance
ammonium thiocyanate, which reacts
with free chlorine to form cyanogen
chloride and/or free cyanide, both of
which are acutely toxic above a
threshold and are regulated under
SDWA.
—Interference with the ability of PWSs
to comply with any NPDWR or
SDWR: To assess whether a worst
case discharge compromises the
ability of the PWS to produce water
that complies with any NPDWR or
SDWR, a covered facility owner or
operator determines whether the
released CWA hazardous substance
alters water quality or interferes with
treatment processes in a manner that
impacts a PWS’s ability to produce
water that complies with an NPDWR
or SDWR. For example, a release of a
strong acid, such as sulfuric acid in
sufficient quantity may reduce water
alkalinity to a degree where the PWS
can no longer maintain adequate
corrosion control, putting it at risk of
a violation under the Lead and
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Copper Rule (40 CFR part 141 subpart
I).
—Threat to public health: To assess
whether a worst case discharge results
in adverse health impacts in people
exposed to the maximum
concentration that could enter a
drinking water distribution system, a
covered facility owner or operator
determines whether the released CWA
hazardous substance, aqueous
products, or a chemical product that
forms when the CWA hazardous
substance reacts with drinking water
treatment chemicals, is predicted to
exceed scientifically accepted
reference concentrations below which
adverse human health impacts are not
expected. An example of such
reference concentrations are EPA’s
established Drinking Water Health
Advisories, which are intended to
protect public health during an
emergency, such as a chemical
release. As an example, benzene has
a one-day Drinking Water health
advisory of 0.2 mg/L.
—Contamination of PWS infrastructure:
To assess whether a worst case
discharge will contaminate PWS
infrastructure, including but not
limited to intake structures, treatment
facilities, and drinking water
distribution systems, or premise
plumbing systems 8 to a degree that
requires remediation to restore system
components to acceptable
performance, a covered facility owner
or operator determines whether the
released CWA hazardous substance,
aqueous products, or a chemical
product that forms when the CWA
hazardous substance reacts with
drinking water treatment chemicals, is
likely to corrode, foul, adhere to,
adsorb into, permeate into, or
otherwise damage components and
materials used at any point in the
PWS, from the intake through premise
plumbing systems. For example, CWA
hazardous substances that are oil-like
can foul water treatment filtration
media, making it ineffective.
—Impact to aesthetic characteristics of
drinking water: To assess whether a
worst case discharge 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
PWS to issue use restrictions, a
covered facility owner or operator
determines whether the released CWA
hazardous substance, aqueous
products, or a chemical product that
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forms when the CWA hazardous
substance reacts with drinking water
treatment chemicals, is predicted to
exceed scientifically accepted
reference concentrations, below
which aesthetic impacts from the
CWA hazardous substance are not
expected. For example, a CWA
hazardous substance at a
concentration above established taste
and odor thresholds could prompt a
water system to issue use restrictions,
such as a ‘‘do not drink’’ order. When
available, secondary MCLs
established under SDWA should be
used as a reference concentration for
aesthetic impacts. For example,
chloride has a secondary MCL of 250
mg/L—above this concentration, the
taste of the water may be
unacceptable to customers. Several
CWA hazardous substances, such as
hydrochloric acid, would increase the
chloride concentration in water.
When assessing each criterion for
substantial harm to PWSs, the covered
facility owner or operator should
attempt to work collaboratively with the
downstream PWS(s) to determine
precisely how the worst case discharge
would impact the system. Given the
complexity of fate and transport of a
CWA hazardous substance in aqueous
environments as well as the impact of
drinking water treatment processes on
the CWA hazardous substance, system
specific information from the PWS will
facilitate the most accurate assessment
for the potential of the CWA hazardous
substance to cause substantial harm to
the PWS. However, if the covered
facility owner or operator has made and
documented good faith efforts but is
nonetheless unable to work with the
PWS in this assessment, the owner or
operator must use the predicted
concentration of the CWA hazardous
substance at the drinking water intake
resulting from a worst case discharge,
along with scientifically accepted
information about the impact of
common water treatment processes (e.g.,
chlorination) on the CWA hazardous
substance to make the substantial harm
determination.
The covered facility owner or operator
must consider each of the five
potentially adverse outcomes to PWSs
described above and determine the
concentration at which the adverse
outcome could occur. The lowest
concentration at which any of the five
adverse outcomes could occur must be
used in the substantial harm
determination, and if the concentration
at the reference point (e.g., at the intake,
at the entry point to the distribution
system) is equal to or greater than the
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concentration at which the adverse
outcome could occur, then the covered
facility meets this substantial harm
criterion.
Finally, a covered facility owner or
operator assesses whether they have had
a reportable discharge of a CWA
hazardous substance (a discharge over
the RQ) to navigable waters in the last
five years. This could be accomplished
by reviewing discharge records and
those submitted to the NRC in the event
of a reportable discharge.
If the covered facility CWA hazardous
substance maximum quantity onsite
meets or exceeds the threshold quantity
and it is located within one-half mile of
navigable waters or a conveyance to
navigable waters, but does not meet any
of substantial harm criteria, the owner
or operator must still submit a
Substantial Harm Certification Form
(Appendix A) to EPA, including
supporting calculations and modeling. If
the covered facility meets at least one of
the substantial harm criteria, the owner
or operator must complete and submit
an FRP to EPA that includes
information on each CWA hazardous
substance onsite above the threshold
quantity, along with their Substantial
Harm Certification Form.
Below is a detailed discussion of the
significant comments and EPA’s
responses, as well as adjustments made
to the regulatory text.
ii. Threshold Quantity
In 40 CFR 118.3, EPA proposed that if
the maximum capacity onsite exceeds
10,000x the RQ, a covered facility meets
the threshold quantity screening
criterion. While EPA proposed using
10,000x RQ multiplier for threshold
quantities, the Agency has determined
that a 1,000x RQ multiplier will more
appropriately screen for covered
facilities that could cause substantial
harm to the environment from a worst
case discharge. For example, some
commenters criticized the 10,000x
multiplier citing a lack of evidence that
those facilities under that threshold
quantity would not be reasonably be
expected to cause substantial harm to
the environment from a worst case
discharge. Therefore, the commenters
urged EPA to take a more precautionary
approach and not exclude these
facilities from determining their ability
to cause substantial harm to the
environment. Since threshold quantity
is a screening tool, i.e., a covered facility
with less than that amount is not
covered by the rule and need not
consider whether it may reasonably
cause a worst case discharge in the first
instance, setting a lower initial
screening level at this stage has merit,
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since even with less than a 10,000x RQ
amount, it is reasonably foreseeable that
a covered facility could cause
substantial harm from a worst case
discharge. Said another way, setting the
threshold quantity too high may mean
that higher risk covered facilities are not
required to determine their ability to
cause substantial harm at all, which
could leave the environment more
vulnerable to worst case discharges.
Several commenters supported the
initial proposed 10,000x RQ multiplier,
but EPA agrees with other commenters
who suggested lowering the RQ
multiplier to 1,000x. See Chapter 2 of
the RIA for this final rule for a detailed
analysis of covered facilities with CWA
hazardous substances onsite at the
1,000x and 10,000x RQ multiplier
levels. This analysis shows that at the
1,000x RQ multiplier, a number of
additional covered facilities with CWA
hazardous substances onsite that
present a significant threat to
downstream PWSs, FWSEs, and public
receptors will need to determine if they
meet the substantial harm criteria. For
example, for covered facilities with
1,000x RQ onsite of arsenic trioxide
(arsenic, a known toxin regulated under
the Safe Drinking Water Act (SDWA)),
66% would now meet the quantity
threshold, versus 50% at 10,000x RQ.
Similarly, for covered facilities with
benzene onsite, a known carcinogen
also regulated under the SDWA, 75%
would now meet the threshold quantity
versus 32% at 10,000x RQ. A few other
examples include lead sulfate (lead,
regulated under SDWA), 66% of
covered facilities at 1,000x RQ versus
17% at 10,000x RQ; sodium arsenate
(arsenic, a known toxin regulated under
SDWA), 100% of covered facilities at
1,000x RQ versus 11% at 10,000x RQ;
and hydrogen cyanide (cyanide,
regulated under SDWA), 57% at 1,000x
RQ versus 29% at 10,000x RQ. These
additional covered facilities evaluating
their substantial harm criteria will
significantly add to protection of the
environment.
EPA disagrees with commenters who
argued that this lower multiplier value
will bring in too many covered facilities
under the rule without a concomitant
increase in environmental protection.
First, meeting the threshold quantity
does not automatically make a covered
facility subject to the rule. Second, a
lower threshold quantity is appropriate
for an initial screening criterion,
ensuring that only covered facilities that
are unlikely to meet the substantial
harm criteria are excluded from the
scope of the rule. Accordingly, EPA has
judged that the screening criteria in
conjunction with the substantial harm
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criteria appropriately targets those
covered facilities that could cause
substantial harm to the environment
from a worst case discharge of CWA
hazardous substances into or on the
navigable waters.
To the commenters who asked for
more information on the basis of the
threshold quantity, the RQ multiplier
reflects relative toxicity parameters used
to establish the original RQs. See section
IV.A.1.a.i of the proposed rule
preamble, Docket ID EPA–HQ–OLEM–
2021–0585–0001, for a discussion on
RQs and how they were derived. The
RQs provide a means to use an existing
regulatory structure that already
considers risk on a scale and that has
been successfully used for release
notification for decades. EPA also
balanced the variability among the 296
CWA hazardous substances and
tailoring threshold amount against a
uniform, easily applied, mass-based RQ
multiplier, as advocated for by many
commenters, deciding on balance in
favor of using a single RQ multiplier. In
addition, while the proposal focused on
capturing larger capacity covered
facilities that could pose a greater risk,
with additional consideration, in EPA’s
judgment, a 1,000x multiplier for
determining the threshold quantity as a
screening criterion more effectively
represents the potential risks associated
with a worst case discharge.
In this final rule, EPA has adjusted its
approach to use maximum quantity
onsite (inventory) rather than maximum
container capacity onsite as the basis for
assessing risk to the environment. EPA
based this decision largely on the fact
that risk determinations using
maximum quantity onsite will more
accurately reflect the hazard posed and
has been used successfully in other EPA
chemical regulations, such that this is
standard business practice.
Additionally, since containers are
typically measured by volume and CWA
hazardous substances may vary
dramatically in weight due to their
physical properties, there is not a clear
association between container size and
quantity of CWA hazardous substances
onsite, which many commenters raised
as an unnecessary complication. Thus, a
covered facility owner, operator, or
inspector would have to convert the
volume of each CWA hazardous
substance container onsite to a
chemical-specific weight in order to
compare reported values and determine
if the covered facility meets the
threshold quantity, exacerbating
conversion difficulties discussed in the
proposed rule including at 87 FR 17900
and raised by several commenters.
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While the Oil Pollution Prevention
FRP regulations use container capacity
for applicability threshold
determination, this is consistent with
how oil is measured and regulated,
using volume (gallons). On the chemical
side, CWA hazardous substances (and
all chemicals that EPA and other
Federal agencies regulate) are measured
and regulated by weight, typically in
pounds. CWA RQs are also weightbased (1, 10, 100, 1,000, and 5,000
pounds). The OPA Conference Report
(H.R. Rep. No. 101–653, 101st Cong., 2d
Sess. 1990) specifically directed EPA to
account for oil storage capacity, but it
has no corresponding language for CWA
hazardous substances. As oil and the
296 CWA hazardous substances differ in
important and myriad ways, it is
reasonable to pursue a different
approach in terms of determining the
appropriate amount that should be used
for determining threshold quantities and
as a planning factor.
In so doing, EPA is responding to
commenter concerns about covered
facilities that may have capacity for but
will never actually have CWA
hazardous substances onsite in
quantities sufficient to meet the
threshold quantity but (if capacity were
the metric) could be subject to the rule,
especially considering some CWA
hazardous substances will never be
stored at the full capacity of a container
due to their physical properties. For
example, several commenters noted that
for one of the highest volume and
occurrence CWA hazardous substances,
anhydrous ammonia, containers are
prohibited to be filled beyond 85%
liquid volume to allow expansion and
contraction.
For mixtures, using capacity gets even
more complicated, an issue raised by
many commenters, since a covered
facility owner or operator, or EPA
inspector would have to convert varying
volumes of CWA hazardous substances
into weights, then extrapolate based on
their proportions to the full capacity of
the container. This seems needlessly
complex and potentially introduces
calculation errors into threshold
applicability determinations and worst
case discharge scenario quantities. To
add to the complexity, CWA hazardous
substance and mixtures can be present
onsite in myriad types of containers and
configurations.
EPA understands the concern
regarding fluctuating quantities and
numbers of containers, particularly at
certain batch processors and in some
industries and also the use of mobile
storage containers and notes that the
maximum quantity onsite must reflect
the aggregated quantity at the covered
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facility across all containers, including
but not limited to rail cars or other
mobile storage not under active
shipping papers, process vessels,
canisters, drums, bulk storage tanks,
dumpsters, totes, or bulk cargo
containers positioned on land. However,
EPA disagrees with commenters who
asserted that the only way to adequately
plan for response to worst case
discharges is to account for the full
storage capacity for CWA hazardous
substances. Indeed, EPA and other
Federal regulators routinely use actual
chemical inventory quantities for a
variety of regulatory and planning
purposes. EPA intends that an FRP for
CWA hazardous substances be forwardlooking and account for the maximum
quantity onsite at any time. On balance,
EPA believes that choosing quantity
over capacity is appropriate in terms of
implementability and the risks
presented. Moreover, covered facilities
have many incentives to accurately
track their inventories over time.
iii. Proximity to Navigable Waters or a
Conveyance to Navigable Waters
EPA is retaining the proposed
location-based screening criterion that
covered facilities must determine
whether they are located within onehalf mile of navigable waters or a
conveyance to navigable waters, while
clarifying that this should be measured
from the facility boundary or nearest
opportunity for discharge. This distance
is based on research related to the Oil
Pollution Prevention FRP regulation. On
balance, while the Agency agrees that
there are significant differences between
oil and CWA hazardous substances,
one-half mile is an appropriate distance
to infer that a covered facility has a
reasonable expectation to discharge to
navigable waters or a conveyance to
navigable waters in the event of a worst
case discharge.
Some commenters argued that the
distance should be extended farther for
more complete protection of the nation’s
waters and in the context of CWA
hazardous substances. However, in
EPA’s analysis, 80% of covered facilities
with CWA hazardous substances onsite
were within one-half mile to navigable
waters (see Chapter 2 of the RIA in the
rulemaking docket). To extend the
distance would make the criterion
effectively meaningless because nearly
every covered facility that meets or
exceeds the threshold quantity would
meet this screening criterion. While
commenters were concerned about
differences in topography complicating
determinations of whether a covered
facility is within one-half mile of
navigable waters or a conveyance to
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navigable waters, this distance should
be measured from the nearest
opportunity for discharge and industry
will be able to comply using widely
available electronic mapping tools. EPA
has determined that the one-half mile
distance is protective and simple to
calculate, and covered facility owners or
operators will have the opportunity to
model a worst case discharge in
evaluating the substantial harm criteria
that depend on planning distance.
Additionally, an owner or operator may
appeal to the RA if they believe there is
no reasonable expectation to discharge
into or on navigable waters or a
conveyance to navigable waters from
their covered facility.
EPA agrees with commenters who
stated that one-half mile to navigable
waters or conveyance to navigable
waters applicability requirement is
important to minimize harms to the
environment. The Agency again notes
that this is an initial screening criterion;
it does not mean that a facility is subject
by the rule. Rather, it means that if a
covered facility does not meet either of
these initial screening thresholds, it is
not subject to the rule and need not do
any further analysis. Only covered
facilities within one-half mile to
navigable water or a conveyance that
also meets or exceeds a threshold
quantity must then determine whether
they satisfy any of the substantial harm
criteria.
EPA recognizes commenter concerns
regarding CWA hazardous substances
that have physical properties (e.g.,
viscosity, vapor pressure, etc.) that
preclude the substance from reaching
navigable waters or a conveyance to
navigable waters. However, a covered
facility owner or operator will consider
these properties, and their implications
for the ability of the substance to impact
water, when they evaluate the
substantial harm criteria, not in the
initial screening criteria. A covered
facility will need to determine its
distance to navigable waters or a
conveyance to navigable waters
regardless of the route or method of
travel of a CWA hazardous substance in
a worst case discharge.
iv. Substantial Harm Criteria
In § 118.3(c), EPA proposed four
substantial harm criteria. EPA is
retaining these criteria in the final rule,
with minor modifications. Below is a
summary of changes and responses to
major comments.
Several commenters asserted that the
extensive efforts to assess whether they
meet the substantial harm criteria were
essentially requiring compliance with
the rule. EPA disagrees with this
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premise; indeed, the reason for the
initial screening criteria is to mitigate
the impact on covered facilities that
would not meet the substantial harm
criteria. However, given the variability
of the CWA hazardous substances at
issue (including variations in transport,
fate, and other chemical characteristics),
it is inevitable that some covered
facilities that meet the screening criteria
will nonetheless not meet any of the
substantial harm criteria. Because of the
myriad of variables involved, the
analysis is necessarily case-by-case. And
while simplicity can reduce costs, it
also often faces the dilemma of being
either over or under inclusive. So, while
EPA determined that simple to apply,
bright line screening criteria were
appropriate to satisfy the requirements
of the statute in terms of adequately
protecting human health and the
environment, a more nuanced analysis
of the substantial harm criteria to
determine which covered facilities must
incur the added cost of preparing an
FRP is warranted. Nevertheless, in
principle, EPA agrees that making it as
easy as possible to conduct these
assessments is an important goal and
will facilitate the successful
implementation of this rule. EPA
intends to continue to identity and
provide tools to the regulated
community and the public to support
these determinations.
To commenters who suggested a
standalone substantial harm criterion
based on the potential impacts of worst
case discharges to navigable waters or a
conveyance to navigable waters on
communities with environmental justice
concerns, EPA recognizes the unique
risks faced by these communities. In
§ 118.5(b), an RA may determine that a
covered facility could cause substantial
harm to the environment due to its
potential impacts on communities with
environmental justice concerns.
Another issue for communities with
environmental justice concerns is the
potential cumulative impact of multiple
covered facilities in one area where any
one covered facility may not have a
maximum quantity onsite that meets or
exceeds the threshold quantity of CWA
hazardous substances, but it seems
likely that if one covered facility
experienced a worst case discharge due
to extreme weather conditions, others
could be similarly impacted and the
collective effects could cause substantial
harm to the environment. Upon
consideration and in response to
commenter concerns, an RA may now
consider concerns regarding co-located
covered facilities when determining
whether a covered facility has the
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potential to cause substantial harm to
the environment.
b. Ability to Adversely Impact a Public
Water System
a. Ability To Cause Injury to FWSE
In § 118.3(c)(1), EPA proposed and is
retaining in the final rule a substantial
harm criterion to consider the covered
facility’s ability to cause injury to
FWSE. Relatedly, the Agency proposed
in Appendix B, and is retaining in the
final rule, 10 percent of Lethal
Concentrations 50% (LC50) as the toxic
endpoints a covered facility owner or
operator must use to perform planning
distance calculations. FWSEs are
identified in ACPs. This regulation does
not alter how FWSEs are identified or
what constitutes FWSE. EPA has added
language that facility owners and
operators must also consider aqueous
products that form when the CWA
hazardous substance enters water to
ensure the full range of risk is
represented in this assessment.
EPA disagrees with the commenter
who requested that the regulated
community should identify endpoints
for individual CWA hazardous
substances (as opposed to categories of
CWA hazardous substances) and
incorporate these facility-defined
endpoint concentrations given EPA
approval. Determining these on a siteby-site and CWA hazardous substanceby-substance basis would be
prohibitively difficult to assess. On a
case-by-case basis, a covered facility
owner or operator may appeal a
substantial harm determination to the
RA if they disagree with the planning
distance calculations. EPA maintains
that the LC50-based endpoints
appropriately model for effects on
wildlife, regardless of the type of
hazardous substance discharge or type
of waterbody.
One commenter requested that EPA
acknowledge that ‘‘not all navigable
waters identify fish, wildlife, and
sensitive environments and public
receptors in their Area Contingency
Plans,’’ and asked for flexibility in these
determinations because of these
situations, specifically referencing the
Oil Pollution Prevention FRP
regulation’s vulnerability analysis,
§ 112.20(h)(4) and section 1.4.1 of
Appendix F. EPA is aware that ACPs
currently may not reflect impacts of
worst discharge of CWA hazardous
substances to navigable waters. Working
with Federal response partners, the
Agency intends to provide compliance
assistance to covered facilities to ensure
these areas are properly identified and
impacts are assessed. In addition, the
owner or operator is responsible for
identifying public receptors, not just
ACPs.
EPA proposed in § 118.3(c)(2) and is
retaining in the final rule the substantial
harm criterion for covered facilities
located at a distance such that a worst
case discharge has the ability to
adversely impact a PWS. Covered
facilities are required to coordinate with
the PWS to determine whether
predicted concentrations from a worst
case CWA hazardous substance
discharge would result in substantial
harm to the PWS. EPA has added
language that facility owners and
operators must also consider aqueous
products that form when the CWA
hazardous substance enters water to
ensure the full range of risk is
represented in this assessment.
However, several commenters
expressed concern with EPA’s
approach. Some commenters requested
that EPA provide detailed, transparent,
and clear guidance about the applicable
drinking water standards to prevent
inconsistencies in implementation and
confusion for covered facilities. An
owner or operator must assess the
possibility of a worst case discharge to
cause any of the impacts enumerated in
§ 118.3(c)(2)(ii) through (v). Information
that supports this assessment includes
NPDWR, SDWR, human health impact
thresholds, taste and odor thresholds,
and physicochemical properties of the
CWA hazardous substance.
Furthermore, EPA intends to provide
compliance assistance to covered
facility owners or operators in making
these assessments, including resources
that crosswalk CWA hazardous
substances against existing NPDWR.
Additionally, several commenters
suggested that EPA allow covered
facility owners or operators to show a
good-faith effort of coordination with
PWSs through documented attempts,
especially in certain circumstances
where coordination is difficult or not
possible. EPA agrees and is revising the
requirement to more clearly state that
owner or operators may show a goodfaith effort of coordination with PWSs
through documented attempts where
coordination is difficult or not possible.
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(i) Alternative Approaches
—Source Water Protection Areas
(SWPAs): As part of the proposal, EPA
considered requiring covered facilities
within SWPAs to prepare an FRP.
Although several commenters
supported this approach, largely for
the reasons enumerated in the
proposal preamble at IV.A.2.b.ii EPA
has decided not to finalize this
requirement. On the one hand,
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21939
SWPAs would be a useful tool that
could eliminate the need for distance
planning if they were universally
available and uniformly applied.
However, they are not. Moreover, EPA
is concerned with the burden that
would be placed on State drinking
water programs to respond to requests
for SWPAs from covered facilities if
this were a requirement of the rule.
Commenters provided no data or
information to support the assertion
that responding to requests for
SWPAs from covered facilities would
likely not place a significant burden
on State drinking water programs.
One purpose of this final regulation is
to implement congressional intent by
shifting the responsibility for
planning from public resources to
private covered facilities that pose a
substantial risk to the environment in
the event of a worst case discharge
into or on the navigable waters or a
conveyance to navigable waters, not
create new burdens for State drinking
water programs or PWSs.
Furthermore, requiring additional
updating of SWPAs or uniformity in
their application so that they could be
used as a substantial harm criterion is
outside the scope of this rulemaking.
—Groundwater: Including potential
discharges to groundwater is outside
of the scope of this final rule, which
is specific to onshore nontransportation-related facilities that,
because of their location, could
reasonably be expected to cause
substantial harm to the environment
by a worst case discharge into or on
navigable waters or a conveyance to
navigable waters. Nonetheless, several
commenters requested that EPA
include a provision to protect
groundwater under the final rule. One
commenter recognized that
groundwater is not jurisdictional
water of the United States under the
CWA but argued that the rule affects
the quality of groundwater drawn by
groundwater-supplied PWSs
regulated under the SDWA as well as
nearby groundwater users and other
downstream surface water users if the
groundwater discharges to surface
water. Again, navigable waters does
not, by definition, include
groundwater.
—Zones Of Concern (ZOCs): EPA
disagrees with commenters who
posited that the source water zones of
concern (ZOCs) described in the
report ‘‘Occurrence of Releases with
the Potential to Impact Sources of
Drinking Water’’ (EPA 817–R–21–001)
are appropriate for this regulation.
The ZOCs used in the study described
in the referenced report were
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intended to provide a uniform
definition for identifying whether
releases captured by the NRC would
be included in the analysis or not.
The methodology was not designed to
identify worst case discharges. As
noted in Section 2.6 of the referenced
report: Limitations of the
Methodology, ‘‘It is possible that
releases significantly impacting a
source of drinking water occurred
outside a zone of concern. Conversely,
it is also possible that releases within
a zone of concern did not significantly
impact the source water.’’ The criteria
in the final rule, which are based on
whether a worst case discharge from
a covered facility could cause
substantial harm to a PWS are
outcome based and therefore will
more appropriately target covered
facilities for regulation compared to
the ZOCs in the referenced report.
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c. Ability To Cause Injury to Public
Receptors
In § 118.3(c)(3), EPA proposed a
substantial harm criterion for covered
facilities that could cause injury to
public receptors through a worst case
discharge into or on navigable waters or
a conveyance to navigable waters, using
the same parameter and toxic endpoint
approach proposed for FWSE. EPA is
retaining this provision in this final
action. Several commenters expressed
concern with EPA’s proposal to have a
separate substantial harm criterion for
covered facilities that could cause injury
to public receptors through a worst case
discharge into or on the navigable
waters or a conveyance to navigable
waters and asserted that this is out of
scope of the CWA. EPA disagrees that
this substantial harm criterion does not
fall under the scope of the CWA or the
stated purpose of this final rule. The
scope of the rule is onshore nontransportation-related facilities that,
because of their location, could
reasonably be expected to cause
substantial harm to the environment by
a worst case discharge into or on
navigable waters or a conveyance to
navigable waters. Public receptors are
defined as areas through which the
public has access to navigable waters,
thus tying this criterion to the statutory
authority.
Covered facility owner or operators
should include impacts to public
receptors in their hazard evaluations in
§ 118.11(b)(3), based on the
physicochemical properties of the CWA
hazardous substances onsite and their
potential effects as well as the potential
economic effects to businesses.
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d. Reportable Discharge History
In § 118.3(c)(4), EPA proposed, and is
retaining in the final action, that a
reportable discharge history is a
substantial harm criterion, meaning the
covered facility has had a discharge of
a CWA hazardous substance at or
exceeding the RQ, as listed in 40 CFR
117.3, that violates CWA section
311(b)(3), i.e., that reaches navigable
waters or adjoining shorelines. If a
covered facility that meets the screening
criteria has had a reportable discharge
within the last five years that reached
navigable waters, it will be considered
to have the potential to cause
substantial harm in the event of a worst
case discharge. Reportable discharge
history will be limited to the preceding
five years, so if a covered facility has
had a reportable discharge outside of
that date range, it does not meet that
substantial harm criterion. EPA clarifies
here that discharges permitted under
National Pollutant Discharge
Elimination System (NPDES) are not
subject to this regulation (40 CFR part
122).
EPA notes that the fact that a
reportable discharge in this context
means that the discharge entered into or
on navigable waters in quantities that
may be harmful. Furthermore, these
discharges are required to be reported to
the NRC, so evaluating whether a
covered facility has had one in the last
five years should add no burden.
Additionally, discharge history may
indicate deficiencies at a covered
facility and so warrant further care and
additional planning, as shown in the
related study of oil spills discussed in
the preamble to the Oil Pollution
Prevention FRP regulation (58 FR 8832,
February 17, 1993).
EPA maintains that five years is a
reasonable look back window and
ample time for a covered facility to
improve spill resilience as demonstrated
through the lack of reportable
discharges into or on navigable waters.
EPA agrees with commenters that
limiting the reportable discharge
releases into or on navigable waters is
reasonable and has added clarifying text
to the final rule. The Agency is not
expanding the discharge history
criterion to cover other reportable
discharges (e.g., to land) given that the
authority for this action is specific to
impacts into or on navigable waters,
adjoining shorelines, or exclusive
economic zone.
e. Passive Mitigation, Administrative
Controls, and Secondary Containment
EPA did not propose and is not
including provisions regarding passive
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mitigation, administrative controls, or
secondary containment in this rule. This
is a planning regulation, as per its
statutory authority under the CWA
311(j)(5). As such, the Agency is not
incorporating mitigation techniques into
the screening criteria, determinations of
substantial harm, nor in the FRP hazard
evaluation.
As per the CWA, as amended by the
OPA, a worst case discharge is defined
as ‘‘the largest foreseeable discharge in
adverse weather conditions.’’ The OPA
Conference Report goes on to state that
the largest foreseeable spill from a given
type of facility is intended to describe
a case that is worse than either the
largest spill to date or the maximum
most probable spill for that type of
facility. Further, Congress’ intent was
that the worst case discharge reflects the
partial failure of various preventive
systems, and that the private sector be
encouraged to increase its spill response
capability (H.R. Rep. No. 101–653, 101st
Cong., 2d Sess. 1990). Relatedly, in
extreme weather events, mitigation
systems may fail. In addition, written
administrative controls may be
overridden or overlooked, making it
foreseeable that a worst case discharge
could occur notwithstanding such
controls.
Furthermore, although EPA
encourages covered facilities to
implement additional release
prevention, detection, and mitigation
measures such as those cited by
commenters, the Agency believes that
the effects of these measures on the size
and impact of a potential spill are not
readily quantifiable, nor easily
supported with historical spill evidence.
CWA hazardous substances vary widely
in physicochemical properties and
prevention and response strategies
correspondingly differ based on the
substance. EPA maintains that
incorporating factors into the worst case
discharge calculation that consider the
risks associated with a variety of sitespecific conditions regarding passive
mitigation or administrative controls
will, in general, be too complex for this
rulemaking, and will require a very
detailed verification and inspection
processes. Requirements to prevent
CWA hazardous substance discharges
are based on many different regulatory
regimes and industry standards and
thus may be difficult for an inspector to
assess and requiring installation or
operation of such systems is outside the
scope of this final action. As a result,
EPA does not believe that it is feasible
or warranted to include a calculation of
mitigation measures tied to a reduction
in the worst case discharge volume.
Nonetheless, if an owner or operator
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believes that the circumstances of the
covered facility are such that it could
not cause substantial harm to the
environment from a worst case
discharge to navigable waters or a
conveyance to navigable waters, they
may appeal the substantial harm
determination to their RA.
For these reasons, EPA maintains that
it is inappropriate to include secondary
containment, administrative controls,
and passive mitigation in this final rule.
f. Transfers Over Water
EPA did not propose an additional or
different substantial harm criteria for
covered facilities that transfer CWA
hazardous substances over water. The
Agency received comments both
supporting and opposing such a
provision. EPA has decided against
including one in this final action. First
and foremost, the USCG has primary
responsibility for MTR facilities and
would be the implementing Agency for
any CWA hazardous substance FRP
regulations for that type of facility.
Should the USCG initiate a rulemaking
for facilities over which it and the
Agency share jurisdiction, the two
agencies will collaborate to ensure
consistency. Moreover, EPA did not
receive data or information to support
adding this as a substantial harm
criterion. EPA notes that should a
covered facility within EPA’s
jurisdiction have a reportable discharge
during transfers over water, this would
meet the § 118.3(c)(4) substantial harm
criterion (i.e., reportable discharge of a
CWA hazardous substances under
§ 117.21 within last five years).
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3. General Requirements
In § 118.4, EPA proposed and is
finalizing, with some adjustments,
general requirements and compliance
dates for CWA hazardous substance
FRPs. In § 118.4(a), to aid in informing
the regulated community of their
responsibilities under this regulation,
the Agency has added ‘‘implement’’ to
the list of items a covered facility must
do regarding their FRP. This will reduce
uncertainty and make clear that plans
must be in place and followed.
In § 118.4(a), EPA has changed the
language for plan submission to
emphasize that there is an initial 36month implementation period. This will
allow covered facilities ample time to
familiarize themselves with the rule
requirements, gauge seasonal and
commodity flow-related inventory
fluctuations to determine the maximum
quantity onsite at any time, perform
planning distance calculations, and
prepare their plans. Plan preparation,
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submission, and implementation
timelines are as follows:
—Initially regulated covered facilities
(covered facilities in operation on
November 30, 2026, and that meet the
criteria in § 118.3 or are notified by an
RA as in § 118.5): by June 1, 2027.
—Newly regulated covered facilities
(covered facilities that meet the
criteria in § 118.3 or are notified by an
RA as in § 118.5 after November 30,
2026: Within 6 months.
—Newly constructed covered facilities
(covered facilities starting operations
after June 1, 2027: Prior to the start of
operations and including a 60-day
start up period adjustment phase.
—Covered facilities regulated as a result
of a planned event or change: Prior to
the start of operations and including
a 60-day start up period adjustment
phase, but no sooner than June 1,
2027. An example of a facility
characteristic change could be
processing expansion whereby nearest
opportunity to discharge moves
within one-half mile to navigable
waters or a conveyance to navigable
waters, such as adding a rail spur.
—Covered facilities regulated as a result
of an unplanned event or change:
Prior to the start of operations and
including a 60-day start up period
adjustment phase, but no sooner than
November 30, 2026.
Newly constructed covered facility
owners or operators should use
projected CWA hazardous substance
maximum quantities onsite to develop
the FRP, which can then be adjusted
during the 60-day operational start up
period.
For covered facilities meeting the
criteria in § 118.3(a) and (b), Appendix
A: Substantial Harm Certification Forms
must be submitted to EPA by June 1,
2027, while covered facilities meeting
that criteria at a later date have 60 days
to submit their forms to EPA, but no
sooner than June 1, 2027. The Agency
has adjusted this timeline from one
month to recognize that the required
calculations may require additional time
and resources.
EPA recognizes that some
commenters believe that the timelines
provided are too short or insufficient for
FRP development and submission. In
response, all covered facilities now have
36 months following the effective date
to comply with the requirements in 40
CFR part 118. On the other hand, some
commenters would prefer a swifter
implementation period. However, due
to resource constraints and the
complexity of implementing a new
regulatory program, EPA had judged a
36-month implementation period to be
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21941
warranted. Moreover, as this is a new
program, albeit modeled on an existing
program, EPA is prepared to provide
necessary compliance assistance as
facilities develop plans for the first time.
Although EPA understands that
current practices at some covered
facilities may present challenges with
meeting the 60-day window for changes
to FRPs, documenting and adjusting
material changes must be done swiftly
to ensure that plans adequately prepare
for worst case discharges of CWA
hazardous substances. Longer timelines
could render the FRP unusable as a
response plan. Larger and more complex
batch processors, laboratories, and
facilities require proactive planning for
the anticipated maximum quantities
onsite. In addition, as detailed in the
proposal, these timelines are roughly
based on OPA 90 transition provisions,
which directed EPA 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 FRPs beginning 30
months from enactment and were
required to be submitted by 36 months
of enactment. For existing and new
facilities, oil FRPs were to be submitted
within six months from the time of
discovery or notification that a facility
could cause ‘‘substantial harm.’’ This
timeline is similar to that of the oil FRP
program, where an oil FRP must be
resubmitted 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.
EPA has added § 118.4(a)(6), whereby
a covered facility owner or operator
must review and recertify their plan
Agency every five years. This will
ensure that FRPs stay updated and that
owners or operators remain cognizant of
their responsibilities under this
regulation. A five-year review period is
common in EPA programs and the
Agency judges this to be a necessary
component of an effective program.
EPA has added § 118.4(a)(7), whereby
a covered facility owner or operator
must evaluate their operations if EPA
adds or removes a CWA hazardous
substance from the list at 40 CFR 116.4
or adjusts relevant RQs as found in 40
CFR 117.3. Such additions, deletions, or
adjustments are done through a formal
notice and comment rulemaking
procedure, so the regulated community
will be on notice and have ample
opportunity to review such proceedings
before they become final. If a covered
facility becomes newly subject to this
regulation at that time, the owner or
operator has six months to submit a new
or updated FRP to EPA.
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4. Regional Administrator
Determination of Substantial Harm and
Significant and Substantial Harm
In proposed § 118.5, EPA detailed a
process by which an RA may require a
covered facility to prepare a CWA
hazardous substance FRP after
consideration of site-specific factors.
EPA has added a provision in § 118.5(a)
whereby the RA may require
amendments to FRPs submitted under
their authority in § 118.5. Additionally,
the Agency proposed factors for the RA
to consider in § 118.5(b), as well as the
factors in § 118.3. Some commenters
urged EPA to remove the provision
regarding the process for RAs to
determine that a covered facility could
cause substantial harm to the
environment and must prepare,
implement, and submit an FRP.
For the following reasons, EPA has
decided to retain the language largely as
proposed in the final action. On the one
hand, EPA understands that § 118.5
creates some uncertainty for owners and
operators. With respect to determining
whether covered facilities could cause
substantial harm to the environment in
the first instance, EPA decided to
implement a rule with two components
(i.e., regulatory criteria, including an
initial screen followed by an analysis of
substantial harm criteria). The
regulatory criteria are designed to
capture the bulk of those covered
facilities that could reasonably be
expected to cause substantial harm to
the environment. However, because of
the size and diversity of the types of
covered facilities within the regulated
community, EPA believes that there are
covered facilities that will not meet the
criteria in § 118.3, but may, due to
facility-specific or location-specific
circumstances, pose sufficient risk to
the environment to be designated as
being able to cause substantial harm to
the environment. Accordingly, EPA has
included the ability of the RA to make
a case-by-case determination. Although
EPA has made every effort to avoid
being overly broad in terms of covered
facilities that must submit an FRP, EPA
understands that there may be
circumstances where the regulatory
criteria are overinclusive. In such cases,
an owner or operator may seek a
determination by the RA that the
covered facility does not have the
potential to cause substantial harm to
the environment despite meeting the
regulatory criteria. The Agency
recognizes that RAs possess unique
knowledge of Region-specific
considerations and EPA has authority
under E.O. 12777 to designate covered
facilities on a case-by-case basis that
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could reasonably be expected to cause
substantial harm to the environment.
That said, EPA expects to exercise this
authority judiciously and in manner
that is reserved to ensure adequate
protection of the environment. This type
of process is not without precedent;
indeed, the Oil Pollution Prevention
FRP regulation has a similar provision
in 40 CFR 112.20.
Moreover, EPA agrees with
commenters who stressed that
communities with environmental justice
concerns may have unique
circumstances that are not captured in
the published applicability criteria. To
be sensitive to these specific issues, of
which RAs are uniquely positioned to
have knowledge, EPA maintains that
considering these concerns and
circumstances is necessary to protect
these communities. Similarly, the
impacts of climate change may be
difficult to anticipate and vary widely;
thus, the Regional ability to assess
facilities on a case-by-case basis and, if
appropriate, to require a facility to
develop a response plan is warranted in
order to protect the environment.
EPA has decided to augment
§ 118.5(b)(2) to specifically reference
CWA hazardous substance
characteristics, such as ignitability and
reactivity. Thus, RAs may take such
considerations into account when
determining if a covered facility could
cause substantial harm to the
environment in the event of a worst case
discharge to navigable waters. This
addition is important in certain
instances to account for the wide variety
of CWA hazardous substances and their
physicochemical properties, including
CWA hazardous substances present in
waste, especially in combination with
the other substantial harm factors in
§ 118.5(b), of which the RA is uniquely
situated to be knowledgeable. In
addition, and with further consideration
of public comments, EPA has decided to
add § 118.5(b)(10), whereby an RA may
consider facility density and potential
cumulative impacts of co-located
facilities in requiring a covered facility
to prepare and submit an FRP. EPA
agrees with commenters concerned
about cascading effects of a worst case
discharge and submits that the RA is
best positioned to evaluate this potential
in the regulated community.
Some commenters also urged EPA to
remove the provision regarding the
process by which RAs determine that a
covered facility could cause significant
and substantial harm through a worst
case discharge into or on navigable
waters or a conveyance to navigable
waters. However, the CWA directs the
President to develop criteria to identify
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a subset of substantial harm facilities
that could reasonably be expected to
cause both significant and substantial
harm to the environment. As such, EPA
proposed factors for the RA to consider
when determining that a covered facility
could cause significant and substantial
harm to the environment in § 118.5(d),
along with the substantial harm criteria
found in §§ 118.3(c) and 118.5(b). Also,
in § 118.5(d)(3), EPA has expanded the
factors an RA may consider when
designating a covered facility as a
significant and substantial harm facility
to include the condition of containers or
equipment onsite, as deteriorating or
poor quality containers or equipment
could more readily fail. In addition,
EPA removed a duplicative provision
referring to plan reviews. Finally, an
owner or operator may appeal an RA’s
determination that their covered facility
could cause significant and substantial
harm to the environment through a
worst case discharge using the process
in § 118.6.
To assist RAs in achieving nationwide
consistency, EPA intends to outline
specific screening procedures for use by
RAs and to foster consistency in how
the substantial harm and significant and
substantial harm factors are applied.
RAs should consider the relationship of
the substantial harm and significant and
substantial harm factors and not
consider one factor in isolation except
under unique circumstances. Although
the RA may consider that one factor is
sufficient to require that a response plan
be submitted, this would be done only
under limited circumstances where sitespecific conditions warrant. EPA
believes that this will help to ensure a
greater degree of uniformity in Regional
determinations of substantial harm and
significant and substantial harm.
RAs will provide a written basis for
the determination of substantial harm or
significant and substantial harm, which
will be made available to the covered
facility owner or operator. An owner or
operator may use the appeals provision
in § 118.6 to request reconsideration and
ultimately appeal to the Administrator
that their covered facility could cause
substantial harm or significant and
substantial harm to the environment
from a worst case discharge into or on
navigable waters or a conveyance to
navigable waters.
5. Appeals
EPA proposed and is retaining in
§ 118.6 a two-step appeals process to
allow covered facility owners or
operators seek reconsideration of the
RA’s determination of substantial harm
or significant and substantial harm or
the disapproval of a CWA hazardous
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substance FRP, and then, if warranted,
to appeal that decision to the EPA
Administrator. The two-step appeals
process is similar to one that has been
available in the Oil Pollution Prevention
FRP regulation for close to 30 years and
is intended to provide owners or
operators with an avenue to present
their data and information to EPA
through a formal process.
In the first stage, the owner or
operator submits a request for
reconsideration, including supporting
data and information, to the RA. Then,
the RA will evaluate the submitted
information and data and decide
whether to approve the covered
facility’s appeal or adjust its evaluation
of the ability to cause substantial harm
to the environment. The RA will issue
a written decision, including the basis
for the determination, as soon as
practicable. Depending on the outcome,
the owner or operator either must
submit a plan or amendments to a plan
following the timelines in § 118.4 or is
not required to submit a plan or
amendments. After the RA issues a
determination, the owner or operator
may appeal the decision to the EPA
Administrator within 60 days. If the
EPA Administrator requires a plan or
amendments to be submitted to EPA,
the owner or operator shall follow the
timelines in § 118.4.
As per the OPA 90 amendments to the
CWA, the intent of this regulation is to
shift the burden of planning and
response to covered facilities rather than
public resources; thus, putting the onus
on the owner or operator to disprove the
need for a plan is appropriate.
6. Petitions
EPA proposed and is retaining in this
final rule a petition provision in § 118.7
whereby the public and other
government agencies may petition EPA
to determine whether a CWA hazardous
substance covered facility should be
required to submit an FRP to EPA.
Petitions are submitted to the RA, who
in turn reviews the submissions as soon
as practicable. Petitions must include a
reasonable basis for asserting that the
covered facility may pose a risk of
substantial harm to the environment.
Specifically, a petition must include a
discussion of how the factors in § 118.3
apply to the covered facility. Although
including quantitative or other data as
to the substantial harm criteria would be
ideal, petitioners are not required to
submit such data. EPA will make the
petition available to the owner or
operator that is the subject of the
petition and provide an opportunity to
respond. RAs may render a decision
based solely on the information in the
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petition and in the response provided
by the owner or operator that is the
subject of the petition, but may also
gather additional information before
rendering a decision.
In terms of public availability, EPA
does not believe that making all
petitions public would serve to protect
human health and the environment.
Some materials may contain sensitive
information or be inaccurate; once a
covered facility is subject to FRP
requirements, EPA will make public
those parts of the FRP that can be shared
as determined in conjunction with
Federal partners like the U.S.
Department of Homeland Security
(DHS) and the Federal Bureau of
Investigation (FBI). EPA is also not
adding a deadline for acting on
petitions, since they and covered
facilities may be complex, and it is
important to allow ample time for
review and to work with both
petitioners and owners or operators to
address any concerns.
EPA disagrees with commenters who
assert that petitions will lead to the
regulation being unevenly applied. It is
not unusual for Executive Agencies to
have a process that develops and
establishes applicability norms over
time. A few commenters suggested that
the rule should require petitioners to
provide supporting evidence and allow
covered facility owners or operators an
opportunity to respond before an RA
decides how the Agency will proceed in
response to such a petition. Other
commenters expressed concern that the
rule does not provide procedures for
covered facilities that are the subject of
a petition to test the claims made in the
petition, to submit data or information,
or rebut the petition in other ways. In
response to these concerns, EPA has
revised § 118.7 to specify EPA will make
the petition available to the owner or
operator of the covered facility in
question and provide an opportunity to
respond. In addition, the RA will work
with the owner or operator to
substantiate the petition, as appropriate.
The appeals and petitions provisions are
complementary: one the one hand, the
petition provision allows for
stakeholder participation in whether
EPA determines if a covered facility
poses a risk of substantial harm to the
environment through a worst case
discharge into or on navigable waters or
a conveyance to navigable waters and
must prepare an FRP. On the other
hand, the appeals provision allows
covered facilities that may meet the
criteria but could not reasonably be
expected to cause substantial harm to
the environment from a worst case
discharge into or on navigable waters or
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21943
a conveyance to navigable waters to
appeal to the RA that the owner or
operator is not required to submit an
FRP, or otherwise engage with EPA on
determinations.
While commenters expressed concern
that the petition process is based on
subjective opinion and lacks evidencebased standards for determining covered
facility applicability, EPA will still
determine covered facility status based
on the regulatory criteria in §§ 118.3 and
118.5. EPA clarifies here that it is not
necessary for petitioners to provide
detailed analyses and calculation as to
whether the covered facility meets one
of the specific criteria in § 118.3 but
rather must provide a reasonable basis
for asserting that the covered facility
may pose a risk of substantial harm to
the environment. For example, if a
covered facility is located near a
wildlife sanctuary and appears to store
significant quantities of a CWA
hazardous substance, then the petition
need only include such observations.
That said, a petition that fails to provide
a basis for why a covered facility should
be determined to reasonably be
expected to cause substantial harm to
the environment from a worst case
discharge into or on navigable waters or
a conveyance to navigable waters (e.g.,
the covered facility is near a drinking
water supply or a priority sensitive
environment listed in an ACP, or has a
history of frequent discharges to water
or poor maintenance, etc.) may not
receive immediate action by the RA or
may be summarily denied. The purpose
of the requirement to provide some
basic information based on knowledge
of EPA’s criteria is to help screen out
frivolous, unfounded petitions. The RA
will use his or her discretion in
following up on petitions that do not
include a reasonable basis to believe a
covered facility could cause substantial
harm to the environment from a worst
case discharge into or on navigable
waters or a conveyance to navigable
waters.
To commenters concerned that
communities at risk of a CWA
hazardous substance discharge would
be dependent on petitions in order to
protect themselves, EPA maintains that
the applicability criteria in § 118.3
appropriately target the bulk of covered
facilities that could cause substantial
harm to the environment from a worst
case discharge into or on navigable
waters or a conveyance to navigable
waters. Rather, for the subset of covered
facilities that may not be captured using
that mechanism, the public may submit
a petition asking EPA to pursue the
matter. The RA then follows the
processes in §§ 118.3 and 118.5 to
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determine whether a covered facility
could cause substantial harm to the
environment.
One commenter requested that EPA
authorize State Emergency Response
Commissions (SERCs) to make covered
facility designations—due to their
greater local capacity to address
environmental justice, responder and
public safety—unless the RA disagrees.
EPA disagrees that SERCs should be
authorized to make covered facility
designations, as this is EPA’s authority.
The SERC may use the petition process
to work with the RA in determining
whether a covered facility could cause
substantial harm to the environment
through a worst case discharge into or
on navigable waters or a conveyance to
navigable waters.
Finally, EPA disagrees that the
petitions process is unprecedented and
expansive; the petitions process is
similar to one that has been available in
the Oil Pollution Prevention FRP
regulation for close to 30 years and is
intended to provide stakeholders and
the public with an avenue to participate
in the FRP determination process with
EPA through a formal process.
7. Exceptions and Exemptions
EPA proposed and is retaining in
§ 118.8 certain exceptions and
exemptions to this regulation, but with
some adjustments and clarifications.
Several commenters expressed concern
about areas where they thought the rule
overlapped with other regulations or
programs. Below is a brief summary of
the regulations commenters most
commonly cited as overlapping:
—The RMP regulation under the CAA’s
authority is for air releases; for that
reason alone, it is insufficient to rely
upon to determine whether a covered
facility could cause substantial harm
to the environment by discharging
into or on navigable waters (40 CFR
part 68).
—The Oil Pollution Prevention Program
FRP regulation is comprehensive for
oils but does not regulate CWA
hazardous substances (40 CFR 112.20
and 112.21, Appendices C–F).
Similarly, the Oil Pollution
Prevention Spill Prevention, Control,
and Countermeasure (SPCC) program
regulates oils, specifically the
prevention of oil spills (40 CFR part
112).
—Occupational Safety and Health
Administration’s (OSHA) Process
Safety Management (PSM) standard
sets requirements for preventing or
minimizing the consequences of
catastrophic releases of toxic, reactive,
flammable, or explosive chemicals in
order to protect workers. The
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provisions of the PSM standard were
written to assure safe and healthful
working conditions for employees,
not to protect the environment from
discharges of CWA hazardous
substances. (29 CFR 1910.119).
—The CWA NPDES Permit Program,
authorized by the CWA, controls
water pollution by regulating point
sources that discharge pollutants into
waters of the United States. An
NPDES permit establishes limits on
what can be discharged, monitoring
and reporting requirements, and other
provisions to protect water quality. In
essence, the permit translates general
requirements of the CWA into specific
provisions tailored to the operations
of the facility discharging pollutants.
A NPDES general permit may be
written to establish requirements that
apply to eligible facilities with similar
operations and types of discharges
that obtain authorization to discharge
under the general permit. It does not
require response planning and
permitted discharges are not regulated
under this final rule (40 CFR part
122).
—Bureau of Alcohol, Tobacco, Firearms
and Explosives ammonium nitratefuel oil (ANFO) requirements apply to
ANFO, which is not a CWA
hazardous substance (27 CFR part
555).
—USDOT regulations for product and
waste shipping apply to items in
transportation, while this proposal
applies explicitly to onshore nontransportation-related facilities (49
CFR parts 171–185).
—DHS regulations do not require
planning for worst case discharges of
CWA hazardous substance into or on
the navigable waters or a conveyance
to navigable waters; rather, they
identify and regulate high-risk
facilities to ensure security measures
are in place to reduce the risk that
certain dangerous chemicals are
weaponized by terrorists (6 CFR part
27).
—The Emergency Planning and
Community Right-to-Know Act
(EPCRA) Reporting Rule is a reporting
rule and does not require worst case
discharge planning (40 CFR part 370).
EPA refers commenters to the TBD,
available in the docket, for more
information on how the program
elements in existing Federal programs
do or do not align with the requirements
in CWA Sec. 311(j)(5).
After examining the RCRA regulations
and commenter concerns, EPA is adding
an exemption at § 118.8(b)(2)(viii) for
the storage and accumulation of
hazardous waste subject to the
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Standards for Owners and Operators of
Hazardous Waste Treatment, Storage,
and Disposal Facilities (TSDF), 40 CFR
part 264 and 40 CFR part 265 and
Standards Applicable to Generators of
Hazardous Waste, 40 CFR part 262,
subpart M. For covered facilities subject
to the TSDF requirements under 40 CFR
parts 264 and 265, these regulations
comprehensively address the program
elements required under CWA section
311(j)(5)(D). For hazardous waste
generators covered under 40 CFR part
262, EPA is exempting those generators
subject to subpart M (i.e., large quantity
generators) for the same reason; the
contingency plan and emergency
procedures requirements therein
comprehensively address the program
elements required under CWA section
311(j)(5)(D). While small quantity
generators have preparedness and
prevention requirements, these do not
cover all required program elements
under CWA section 311(j)(5)(D), and
very small quantity generators are not
subject to prevention and preparedness
requirements nor required to develop a
contingency plan and emergency
procedures. Since hazardous waste at
these generators may contain CWA
hazardous substances and are not
subject to all RCRA hazardous waste
requirements, EPA has decided that
hazardous waste generators not subject
to RCRA part 262, subpart M
requirements must follow the
applicability criteria at § 118.3 to
determine if they could cause
substantial harm to the environment
through a worst case discharge into or
on navigable waters or a conveyance to
navigable waters. Solid, non-hazardous
waste is also subject to this final rule.
Additionally, EPA excepts tanks
already regulated under the
underground storage tank (UST)
program at 40 CFR part 280 at 40 CFR
118.8(a)(4). EPA is not regulating
substances present as oil and that may
be part of an oil mixture, such as
gasoline, at covered facilities in this
action since those are regulated under
40 CFR 112.20.
In terms of adjustments and
clarifications, the Agency clarifies that
permitted discharges are not included in
the § 118.3 applicability determinations,
nor the § 118.11 FRP requirements.
Also, EPA is adding an exemption
under § 118.8(b)(2)(v) for wastewater
whereby a POTW does not need include
CWA hazardous substances present in
wastewater entering their collection
system prior to treatment under a
NPDES permit in their threshold
quantity determinations. The Agency,
however, notes the pretreatment
program oversight requirements in 40
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CFR 403.8(f) for any industrial users
that may be subject to this rule, and
recommends control authorities
evaluate whether program elements
such as slug control plans or local limits
expressed as best management practices
should be issued or revised in
coordination with the requirements of
this rule.
Additionally, EPA clarifies here that
the exemption under § 118.8(b)(2)(iv) for
use of process water or cooling water is
specific to amounts of a CWA hazardous
substance present in water drawn into a
covered facility from the environment or
municipal sources. For example,
chlorine present in water taken from
municipal sources does not have to be
considered for threshold determination.
This is consistent with the approach
taken by other chemical regulations,
including Toxics Release Inventory
(TRI) and RMP, and DHS’s Chemical
Facility Anti-Terrorism Standards
(CFATS) program and reflects the low
level of risk of such waters.
Finally, this regulation applies to only
the non-transportation-related portion of
MTR facilities that are subject to both
EPA and USCG jurisdiction, as per
§ 118.8. As such, the non-transportationrelated portion of the facility is
generally defined as the valve manifold
adjacent to the tank nearest the
connection to the transportation-related
portion of the facility (i.e., the structure
used or intended to be used to transfer
CWA hazardous substances to or from a
vessel or pipeline). The interface may be
defined differently at a specific facility
if agreed to by the RA and the
appropriate Federal official.
8. Mixtures
In § 118.9, EPA proposed and is
retaining in this final action a mixture
provision for determining the CWA
hazardous substance maximum quantity
onsite at the covered facility of CWA
hazardous substance(s), under
§ 118.3(a) and mixture worst case
discharge quantities under § 118.10.
This provision is based on CERCLA
Notification Requirements, found in
CERCLA section 103(a) (40 CFR 302.6).
EPA agrees with a commenter that noted
the chosen approach mirrors existing
regulations on how to treat mixtures of
CWA hazardous substances under the
CWA and CERCLA. Regulated facilities
are familiar with the mixture rule and
how to apply it.
EPA disagrees with commenters who
argued that requiring the use of the
lowest RQ when the exact mixture
composition is unknown is overly
conservative, unrealistic, and does not
reflect the actual risk of harm. If there
are known and unknown substance
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constituent quantities, the covered
facility owner or operator must only
apply the lowest RQ to the unknown
portion of the mixture, not the entire
quantity. This approach is properly
conservative and reflective of risk. If a
covered facility owner or operator can
provide evidence that the mixture
composition does not meet the lowest
RQ, they may use the appeals provision
in § 118.6 to adjust their maximum
quantity onsite or worst case discharge
scenario quantity, or for reconsideration
of their status.
A few examples illustrate how the
mixture rule is applied when evaluating
whether the quantity of CWA hazardous
substances onsite is greater than or
equal to their respective RQs. The first
example provides a case where a
covered facility has a mixture where all
components are known. The covered
facility has 5,000 pounds of a cleaning
solution containing 45–55% water, 1–
10% chromic acid, 1–10% sodium
sulfate, and 25–35% sulfuric acid
onsite. Chromic acid (CAS 7738–94–5)
and sulfuric acid (CAS 7664–93–9) are
CWA hazardous substances with RQs of
10 and 1,000 pounds, respectively. The
owner or operator assumes the highest
percentage of each CWA hazardous
substance in the range, performing
mixture calculations based on 10%
chromic acid and 35% sulfuric acid.
Based on the total quantity of the
cleaning solution at the covered facility,
there are 500 pounds of chromic acid
and 1,750 pounds of sulfuric acid
onsite. The threshold quantity for
chromic acid is 10,000 pounds, while
the threshold quantity for sulfuric acid
is 100,000 pounds. The quantities of
chromic acid and sulfuric acid onsite
are below the threshold quantity.
A second example demonstrates
threshold calculations when the
composition of a mixture is not known.
A large manufacturing covered facility
produces chromated copper arsenate as
a wood preservative for specialized
timber applications. The covered facility
regularly generates production waste,
which is stored in a container. The
container has 1,000 pounds of a waste
of unknown composition, but which has
been determined to be non-hazardous
under RCRA and contains water, copper
oxide, arsenic pentoxide, and chromic
acid. Arsenic pentoxide (CAS 1303–28–
2) and chromic acid (CAS 7738–94–5)
are CWA hazardous substances with
RQs of 1 and 10 pounds, respectively.
The covered facility has 50 pounds of
arsenic pentoxide and 75 pounds of
chromic acid onsite as reactants.
Because the composition of the waste is
unknown, the owner or operator must
assume that the entire mixture is
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composed of the lowest RQ substance,
in this case arsenic pentoxide. Based on
the total mass of the waste, the owner
or operator calculates that they have
1,000 pounds of arsenic pentoxide from
the waste mixture, and 50 pounds of
arsenic pentoxide as a reactant (but
which is not a commercial chemical
product), with a total mass of 1,050
pounds of arsenic pentoxide. The
threshold quantity for arsenic pentoxide
is 1,000 pounds. The quantity of arsenic
pentoxide onsite is above the threshold
quantity.
A final example demonstrates a case
when part of a waste mixture containing
CWA hazardous substances is known
and part is unknown. A small, covered
facility uses hydrochloric acid and
nitric acid as part of its manufacturing
process. The spent acid is collected in
a large vessel containing 100,000
pounds of a mixture with a pH of 3
composed of 25% water by weight and
an unknown percentage of hydrochloric
acid, nitric acid, and several other
unknown chemical substances.
Hydrochloric acid (CAS 7647–01–0) and
nitric acid (CAS 7697–37–2) are CWA
hazardous substances with RQs of 5,000
and 1,000, respectively. The covered
facility has 1,000 pounds of
hydrochloric acid and 5,000 pounds of
nitric acid onsite. Because 25% of the
waste mixture is of known composition,
the owner or operator only needs to
assume the remaining 75% of the
mixture is the CWA hazardous
substance with the lowest RQ. Because
nitric acid has the lowest RQ, the owner
operator calculates that they have
75,000 pounds of nitric acid in the
waste mixture, with 80,000 total pounds
of nitric acid onsite. The threshold
quantity for nitric acid is 1,000,000
pounds. The quantity of nitric acid
onsite is below the threshold quantity.
Note that CWA hazardous substance
maximum quantities onsite are
calculated by CWA hazardous
substance. They should not be
aggregated, even if they have the same
RQ.
9. Worst Case Discharge Calculations
As discussed earlier, EPA is adjusting
the worst case discharge calculations in
§ 118.10. The CWA, as amended by the
OPA, defines the worst case discharge
for a facility as ‘‘the largest foreseeable
discharge in adverse weather
conditions.’’ As detailed above, adverse
weather conditions include those due to
climate change, which may consist of
challenging climatic conditions such as
those that would maximize the peak
concentration of the discharged
substance in the receiving waterbody.
The OPA Conference Report goes on to
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state that the largest foreseeable spill
from a given type of facility is intended
to describe a case that is worse than
either the largest spill to date or the
maximum most probable spill for that
type of facility (see H.R. Rep. No. 101–
653, l0lst Cong., 2d Sess. 1990 at pp.
149–150.), which is unlikely to be the
entire capacity or quantity stored at a
facility in a single event.
Again, EPA has adjusted its approach
to worst case discharge scenario
quantity to use the maximum quantity
of a single container for substances
stored in separate containers or the
maximum quantity of a group of
interconnected containers, rather than
capacity. Facility circumstances and
methods of storage vary widely, and
owners or operators should know their
inventories and largest containers.
Additionally, this simplifies procedures
for facilities accounting for mixtures.
EPA has further adjusted its approach to
require worst case discharge scenarios
for all CWA hazardous substances
onsite above the threshold quantity once
a covered facility is subject to this
regulation. This will satisfy the statutory
requirement to plan for CWA hazardous
substance worst case discharges and
address the concerns of commenters
around which substance to use in worst
case discharge scenarios. The Agency
has also revised language to clarify that
covered facility owners or operators
must compare the distance to the
endpoints provided in Appendix B
against their calculated CWA hazardous
substance planning distance to
determine if the covered facility could
cause substantial harm to FWSE or
public receptors from a worst case
discharge into or on navigable waters or
a conveyance to navigable waters and
also in their hazard evaluation once a
covered facility is subject to the
regulation. EPA has further adjusted the
properties of the CWA hazardous
substance to be evaluated to reflect
those properties as they relate to a
discharge to navigable waters.
Additionally, an owner or operator must
provide evidence in their Appendix A:
Substantial Harm Certification Form
that containers with common piping or
piping systems are not operated as one
unit. Finally, EPA has added pH and
alkalinity under the conditions of the
receiving water to better characterize a
worst case discharge in
§ 118.10(b)(ii)(E).
While a few commenters were
concerned about piping and measuring
the contents of piping systems, EPA
maintains that, in general, if a covered
facility owner or operator has two or
more containers that contain a CWA
hazardous substance and are connected
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through piping or hoses to transfer the
CWA hazardous substance, the owner or
operator must consider the total
quantity of the CWA hazardous
substance in all the connected
containers and piping when
determining the maximum worst case
discharge scenario quantity. If the
containers are connected for transfer of
the CWA hazardous substance using
hoses that are sometimes disconnected,
the owner or operator still must
consider the contents of the containers
as one process, because if one container
were to rupture while a hose was
attached or a hose were to break during
the transfer, both containers could be
affected. Again, the statute directs EPA
to address the worst case discharge
scenarios—even in situations where the
conditions are not static, i.e., sometimes
containers are connected but not
always. Therefore, the owner or operator
must count the quantities in both
containers and in any connecting piping
or hoses. Similarly, the presence of
automatic shutoff valves or other
devices that can limit flow do not
change the analysis because these are
assumed to fail for the purpose of
determining the worst case discharge
scenario quantity. This is consistent
with and required under other
regulations, such as onshore oil
pipelines regulated by the USDOT
Pipeline and Hazardous Materials Safety
Administration.
EPA agrees with commenters who
noted that there are chemicals in the
CWA hazardous substance list at 40 CFR
116.4 that may be in either a solid or
gaseous form upon release and may be
physically unable to reach navigable
waters or a conveyance to navigable
waters. Specifically, facility
circumstances and methods of storage
vary widely, so the covered facility
owner or operator must use their best
professional judgment based on the
physicochemical properties and
characteristics of the substance at issue
and best available information and
practice in determining if a worst case
discharge or a CWA hazardous
substance that releases as a gas or solid
could, in adverse weather conditions,
reach navigable waters or a conveyance
to navigable waters, cause injury to a
public receptor or FWSE, or adversely
impact a PWS. This may mean that for
a substance released as a gas in adverse
weather conditions and without
consideration of passive mitigation,
secondary containment, or
administrative controls, the distance to
endpoints cannot be calculated. Solid
CWA hazardous substances may be
miscible in water and, as such, a
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planning distance may be calculated.
Thus, if a solid stored as a powder or
in pellets has the ability to release in a
flood scenario and reach navigable
waters or a conveyance to navigable
waters, the covered facility owner or
operator must make a substantial harm
determination, and if determined to be
able to cause substantial harm to the
environment from a worst case
discharge of a CWA hazardous
substance into or on navigable waters or
a conveyance to navigable waters,
submit an FRP to EPA. However, EPA
stresses that adverse weather
conditions, including extreme events
due to climate change, must be
considered. As such, if a solid stored as
a powder or in pellets could release in
a high-intensity rainfall event or flood
scenario and navigable waters or a
conveyance to navigable waters, the
covered facility must make a substantial
harm determination. Similarly, should a
worst case discharge consist of a CWA
hazardous substance releasing as a gas
that could mix with rainwater and then
reach navigable waters or a conveyance
to navigable waters, the covered facility
owner or operator would need to
examine that outcome in their worst
case discharge scenario(s). Relatedly,
EPA is not choosing to set a temperature
range or define the form of the
substance as it releases; instead, the
covered facility owner or operator
should make a similar determination as
described above. The Agency recognizes
commenter concern over covered
facilities with a variable inventory of
CWA hazardous substances. Owners or
operators of these covered facilities will
need to plan for the maximum quantity
in a single container or interconnected
containers of a CWA hazardous
substance onsite at any one time and
forecast when such occasions may
occur. Due to the potentially
catastrophic effects of a worst case
discharge, the Agency does not see these
requirements as overly burdensome.
EPA notes that plans can and should be
updated if, for example, there is an
unexpected increase in demand such
that the worst case discharge scenario
quantity is outside of anticipated
fluctuations and necessitates different or
more response resources, requiring an
amendment to the FRP as in § 118.4(b).
While some commenters asked for
clarification on the timing of a
discharge, EPA maintains that a worst
case discharge may occur
instantaneously or over time, and a
covered facility owner or operator is
best situated to determine the
appropriate timing scenario based
onsite-specific considerations and the
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physicochemical properties of the CWA
hazardous substances in question. The
timing used for the worst case discharge
scenario should reflect reasonable
conditions that have the greatest
potential to cause substantial harm. One
commenter suggested that calculations
should be based on the dollar amount of
potential damage. EPA is not following
this approach as such calculations
would be very difficult to assess and
could fluctuate over time dependent on
inflation and the costs of equipment,
materials, labor, etc.
The Agency is aware that CWA
hazardous substance planning distance
modeling is a critical component of
successful implementation of this
regulation and is engaged with its
research arm to identify additional data
and resources to aid the regulated
community in compliance. That said,
EPA disagrees with commenter
concerns that having covered facilities
exercise their professional judgment and
applying best modeling practices creates
opportunities for inconsistency, as it
provides flexibility and allows for those
most familiar with the substance,
facility, and site conditions to examine
the event of a worst case discharge and
its potential effects.
For commenters concerned with
public availability of the models used,
§ 118.10 as proposed and finalized in
this action requires covered facility
owners or operators to provide EPA
access to models, submit documentation
substantiating the methodology, and
describe the features to local emergency
planners. EPA will work with other
Federal partners to determine the
feasibility and safety of providing such
information to the public.
For the commenter who suggested
requiring use of the Chezy Manning
equation as in the Oil Pollution
Prevention FRP regulation (40 CFR part
112, Appendix C), this approach may be
applicable to some oil-like CWA
hazardous substances. However, it is not
generally applicable to the myriad
characteristics and effects of the 296
hazardous substances listed in 40 CFR
116.4. So, while they may be useful
tools, dictating or limiting the analysis
to those methods alone would not be
adequate for calculating planning
distances for all CWA hazardous
substances, though they may be used for
oil-like CWA hazardous substances as
appropriate.
10. Facility Response Plan
Requirements
EPA proposed and is finalizing with
adjustments the FRP requirements in
§ 118.11. One major objective of the
OPA 90 amendments to section 311(j)(5)
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of the CWA was to shift the burden of
response from public to private
resources. 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) of the CWA 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. The Agency clarifies here
that covered facility owner or operators
who meet the screening and one or more
of the substantial harm criteria must
prepare and submit an FRP to EPA that
plans for all CWA hazardous substances
onsite above the threshold quantity but
not CWA hazardous substances onsite
below the threshold quantity.
The requirements in § 118.11 are
designed to address concerns specific to
CWA hazardous substances; as such
they do not mirror exactly the
requirements under the Oil Pollution
Prevention FRP regulation. A written
plan that complies with other Federal
contingency plan regulations or is
consistent with the approach in the
National Response Team’s ICP Guidance
(‘‘One Plan’’) and that includes the
elements required will satisfy the
requirements of this final rule. Facilities
may augment an existing response plan
with requirements that are specific to
this action.
The Agency is aware that planning for
any number of the 296 possible CWA
hazardous substances with disparate
characteristics and impacts may be
involved. That is one reason EPA has
implemented an initial screen with
relatively bright line criteria to that will
identify covered facilities that do not
need to engage in further analysis.
In this final action, once a covered
facility determines it meets one of the
substantial harm criteria, the owner or
operator must plan for all CWA
hazardous substance onsite above the
threshold quantity. EPA has adjusted its
approach from the proposed rule, where
one CWA hazardous substance worst
case discharge scenario provided the
basis for the FRP. This change is
consistent with EPA’s statutory
authority under this action to require
plans for covered facilities that, because
of their location, could cause substantial
harm to the environment from a worst
case discharge into or on the navigable
waters. It also recognizes that response
and/or recovery actions may vary
widely depending on the
physicochemical properties of the
substance, so one CWA hazardous
substance at facilities with multiple
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CWA hazardous substances that meet or
exceed the threshold quantity cannot
adequately inform that facility’s FRP.
i. Consistency With National
Contingency Plan and Area Contingency
Plans
Despite supporting the overall
proposed rule, one commenter
requested EPA add a provision to
§ 118.11(a)(1) to provide a way to
evaluate facility owner or operator
compliance with the requirement to
ensure consistency with the NCP and
ACPs. This seems like a commonsense
suggestion that should not impose any
additional burden on facilities and will
allow the Agency and other reviewers to
confirm compliance and cross check
relevant plans. Accordingly, EPA has
added § 118.11(a)(1)(ii), requiring a
signed affirmation of review of relevant
plans and § 118.11(a)(1)(iii), requiring a
list of area and sub-area plans reviewed.
Additionally, EPA has augmented this
provision to require consistency with
Regional Contingency Plans (RCPs) as
per 40 CFR 300.210. This is appropriate
and consistent with the requirements of
the CWA since RCPs form a
fundamental component of the NCP.
ii. Qualified Individual
Several commenters stated that the
requirements for a QI are extremely
difficult to meet and impractical, while
placing all these responsibilities on one
individual is inconsistent with most
facilities’ operational structures. On the
one hand, EPA understands that this is
a new program and these requirements
may be foreign compared to how owners
or operators currently do business. On
the other hand, such requirements have
been in operation for close to 30 years
in the Oil Pollution Prevention FRP
regulation, so there is precedent and a
successful model for this approach.
Accordingly, EPA is keeping in place
the requirements for a QI. However, in
response to the concerns raised in the
comments, EPA is clarifying that a
documented management system that
can perform the stated functions may
take the place of a single individual. For
example, as in the Oil Pollution
Prevention FRP regulation, duties may
be spread across corporate departments
and consist of a regional QI structure,
corporate call center, and corporate
media relations department.
As stated in the OPA conference
report (H.R. Rep. No. 101–653, 101st
Cong., 2d Sess. 1990), a main objective
of this statutory mandate is to shift the
burden of response from public to
private resources. A sufficiently trained
QI can be a valuable member of the
incident response team who has
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intimate knowledge of the facility and
its operations, allowing the QI to make
better and informed decisions for the
facility if the plan needs to be put into
action as well as how the facility
response fits into the larger community
response. Assuming public responders
will take on this role is inappropriate to
this action.
In § 118.11(a)(2)(xii), EPA is requiring
QIs to acquire and maintain incident
commander training requirements
consistent with 29 CFR
1910.120(q)(6)(v). Commenters asserted
that this is inappropriate because
OSHA’s Hazardous Waste Operations
and Emergency Response (HAZWOPER)
standard at 29 CFR 1910.120 is for
uncontrolled releases, which could be
mitigated by passive mitigation and thus
be controlled. EPA maintains that a
worst case discharge into or on
navigable waters or a conveyance to
navigable waters that causes substantial
harm to the environment is, by
definition, an uncontrolled release and
is not allowing for consideration of
passive mitigation in this final action.
EPA maintains that proper facility
personnel training is critical to an
effective response program.
iii. Emergency Response Information
EPA has endeavored to provide a
framework in § 118.11(b) that is
consistent with the Oil Pollution
Prevention FRP regulation in 40 CFR
112.20 while maintaining the flexibility
needed to address the specific planning
needs for 296 disparate CWA hazardous
substances.
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Facility Information
EPA agrees with a commenter
suggestion to add EPA identification
numbers to make it easier for EPA,
response officials, and stakeholders to
cross-reference other relevant
information about the facility related to
discharge response and preparedness.
As such, the Agency has added ‘‘EPA
identification numbers’’ as a data
element to report so facility owner or
operators can report various EPA ID
numbers they may use, such as TRI IDs,
Facility Registry Service (FRS) numbers,
etc. This will aid in cross referencing
submissions across programs.
Additionally, to provide consistency
with the Oil Pollution Prevention FRP
regulation, EPA is adding that a facility
owner or operator must indicate
whether their facility is located in or
drains into a wellhead protection area as
defined by the SDWA. This information
will aid responders in determining
whether further assessment of impacts
to those areas is warranted.
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Owner or Operator Information
The Agency maintains that
information on the facility owner or
operator is sufficient; both are not
needed. EPA is not requiring
notification of related facilities nearby
and disagrees with a commenter who
suggested that listing all facilities within
a three-mile radius that are under
common ownership would enhance
response planning efforts. Related
information should be included in the
hazard evaluation, where a facility
owner or operator would identify
nearby businesses that could be affected
by a worst case discharge.
Hazard Evaluation
The Agency is aware of the
complexity and cost of modelling
endpoints for all CWA hazardous
substances above the threshold,
examining communities with
environmental justice concerns, and
considering climate change impacts in
hazard evaluations. EPA intends to
provide tools and compliance assistance
to help the regulated community
comply with these requirements and
maintains that their inclusion is critical
to protect the environment in the event
of a worst case discharge. The hazard
evaluation will additionally serve to
inform equipment selection (i.e., based
on physicochemical characteristics of
the CWA hazardous substance as floater,
sinker, or soluble in water) and response
actions to be taken, since those will all
depend on what risks are identified and
characterized, the necessary control
methods, and communications required.
Additionally, EPA has added a
requirement that, when identifying
risks, facility owners or operators must
assess the age of CWA hazardous
substance containers, since older
containers may be more susceptible to
failure. Facility owners or operators
must also identify taste or odor
thresholds in water in their assessment
of the ability to adversely impact a PWS
in order to more fully inform the
relevant PWS of the risks.
For the commenters concerned about
assessing cascading failures, EPA does
not have access to facility-specific risk
information and is not taking on that
responsibility for this evaluation, nor is
it requiring facilities to assess these
impacts across facilities. However, the
risks associated with facility density is
a factor the RA may consider in
§ 118.5(b)(10) when determining if a
facility could cause substantial harm to
the environment through a worst case
discharge into or on navigable waters or
a conveyance to navigable waters. That
said, it is incumbent upon the facility
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owner or operator to identify nearby
schools, businesses, places of worship,
or other areas that could be impacted by
a worst case discharge.
In addition, the hazard evaluation
must examine the effects of CWA
hazardous substance worst case
discharges on communities with
environmental justice concerns as well
as the effects of climate change,
including those that result in low flow
conditions in receiving water bodies, on
the likelihood, duration, and impacts of
a CWA hazardous substance worst case
discharge into or on navigable waters or
a conveyance to navigable waters. EPA
is not specifying specific climatological
data or scenarios in regulation in order
to be flexible and in recognition that
climate change impacts are occurring in
unexpected ways. Indeed, climate
change considerations may include the
increased frequency and intensity of
extreme weather events, temperature
fluctuations, rising seas, storm surges,
inland and coastal flooding, drought,
wildfires, and permafrost melt in
northern areas. Instead, the Agency will
continue to provide compliance
assistance for assessing both climate
change impacts and effects on
communities with environmental
concerns.
Reportable Discharge History
EPA maintains that reportable
discharge history is not only relevant
but also an appropriate substantial harm
criterion; this information is critical to
scenario development, including
lessons learned from past CWA
hazardous substance discharges and
response efforts. In terms of a timeline
for reporting, EPA is following the lead
of the Oil Pollution Prevention FRP
regulation and requiring this
information to be retained for the life of
the facility. EPA notes that permitted
discharges under NPDES and reportable
discharges under 40 CFR part 112 are
covered under those regulations. EPA is
not requiring information on non-CWA
hazardous substance discharges, since it
is unclear at best how relevant they are
or would be to worst case discharges of
CWA hazardous substances. Similarly,
EPA is only including reportable
discharges that reach navigable waters,
since other discharges are outside the
scope of this action.
Another commenter suggested that
that any discharge above a RQ is already
required to be reported under the CWA
or the ancillary State program, so it
should be sufficient for the CWA
hazardous substance FRP to simply
reference the notification submitted to
EPA or the State. EPA disagrees that this
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is an adequate substitute for purposes of
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Response Personnel and Equipment
Pursuant to § 118.11(b)(5), facility
owners or operators must provide the
identity and a description of response
personnel and equipment and response
action implementation necessary to
respond to a discharge of a CWA
hazardous substance. The Agency
clarifies that a management system that
clearly outlines the spill response roles
will be sufficient for this requirement,
as long as it is properly documented.
Contracts
EPA has revised the contracts
requirement to explicitly require
response resources with firefighting
capability. Adding this clarification will
aid facility owners or operators in their
preparations for a worst case discharge
due to fire or explosion, as per the
statutory requirement. This is also
consistent with the Oil Pollution
Prevention FRP regulation at 40 CFR
part 112, Appendix E, section 7.4. If a
facility does not have adequate
resources onsite and it is unable to rely
on locally available resources with
firefighting capabilities, the facility
owner or operator must identify such
resources and ensure they are available
by contract or other approved means as
per § 118.2. The plan must also identify
an individual, who could be the QI, at
the facility to work with the local fire
department during a response and verify
that sufficient well-trained resources are
available within a reasonable response
time to respond to a worst case
discharge.
EPA recognizes that, in many cases,
contracting resources will need to be
identified to fill the role of SROs. Most
large Oil Spill Removal Organizations
already have the capability to respond
to hazardous material incidents,
particularly if they have been contracted
by truck and rail carriers. EPA expects
that the potential increase in demand
for SROs caused by the rule will result
in greater competition and increased
market entry by new contractors.
Additionally, in § 118.4, EPA is
providing a 36-month implementation
period before facility owner or operators
must submit plans. Finally, EPA will
work with USCG to identify SROs that
can fulfill this role.
Notification Lists
EPA received a variety of suggestions
of possible interested parties who could
potentially be contacted in the event of
a discharge. EPA is not expanding the
scope of the notification list, since
Federal, Tribal, State, and local
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responders, as well as the non-specific
listing of potential receptors or
interested parties is inclusive of all of
these suggestions. The Agency did,
however, remove the requirement to
notify the Federal On-Scene Coordinator
(OSC) and/or Regional Response Center,
since this notification will be handled
by the NRC. Federal, State, and local
responders will be best positioned to
determine whether additional types of
notifications are necessary and will be
most knowledgeable about the language
needs of their local community.
Additionally, local responders will be
aware of special populations, e.g.,
hospitals, long-term care homes,
assisted living facilities, etc., that may
have specific concerned and needs in an
emergency situation.
EPA can expect facilities to ensure
that a community notification system is
available because FEMA has established
the Integrated Public Alert & Warning
System (IPAWS) for community
notification. This system provides
authenticated emergency and life-saving
information to the public through
mobile phones using wireless
emergency alerts. It also provides alerts
to radio and television via the
Emergency Alert System and on
NOAA’s Weather Radio. The Emergency
Alert System devices found at radio, TV
and cable stations can support multiple
languages and wireless Emergency
Alerts can support both English and
Spanish. EPA has judged that the
presence of State and/or local IPAWS
alerting authorities—with the
designated authority to alert and warn
the public when there is an impending
natural or human-made disaster, threat,
or dangerous or missing person—in all
50 States provides the necessary
infrastructure for facilities to ensure that
a community notification system is
operational in the event of a worst case
discharge of a CWA hazardous
substance with the potential to impact
the public. The most applicable alerts
through this system would be the
imminent threat and public safety alerts.
Imminent threat alerts include natural
or human-made disasters, extreme
weather, active shooters, and other
threatening emergencies that are current
or emerging. Public safety alerts contain
information about a threat that may not
be imminent, or about an imminent
threat that has occurred.
EPA disagrees with commenters who
argued that ‘‘preferred communication’’
should be removed, since telephone call
is not the only method of notification.
The reason telephone communication
has been historically preferred is
because the ‘‘sender’’ knows that they
have gotten through, or just as
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importantly, that they have not gotten
through and need to continue trying.
That said, as long as receipt of the
communication is confirmed,
notification can take any number of
electronic forms, including text or
email.
Discharge Information
EPA clarifies that there is an
expectation that a facility will provide
response officials with material updates
to discharge information as the facility
learns more about the scope and nature
of the discharge as it becomes available
to aid response efforts.
Personnel Roles and Responsibilities
In response to the concerns raised in
the comments, the Agency is clarifying
that a documented management system
that can perform the stated functions
may take the place of a specific
individual.
Response Equipment Information
In order to avoid unnecessary
confusion or redundancy, EPA notes
that CWA hazardous substance FRPs
may reference lists in other plans as
long as they meet the requirements of
§ 118.11. For example, oil FRP plan
holders could reference their existing
response equipment and update the
narrative to meet the CWA hazardous
substance FRP requirements in an ICP.
EPA disagrees with a commenter who
asserted that monitoring and sampling
equipment should be specified as ‘‘can
be made available.’’ Since time will
always be of the essence in responding
to a worst case discharge, these items
are an important component of CWA
hazardous substance response and
should be actually available rather than
possibly available. Additionally, plan
holders should refer to their ACP, which
contains equipment and response
resource requirements in some areas.
Finally, determining the type, quantity,
etc. of response resources may vary
widely given the range of facilities and
chemicals at issue, which is one reason
EPA has decided that facility owners
and operators should have the latitude
to make these types of determinations.
Evacuation Plans
One commenter suggested that the
final rule explicitly require FRPs to
identify the community evacuation
plan(s) with which they coordinated
and how that coordination with the
surrounding community was conducted.
EPA agrees with the commenter that
this is an important aspect of response
planning for a worst case discharge and
has adjusted its approach to require
FRPs to identify and list the community
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evacuation plans consulted in
§ 118.11(b)(11).
The Agency recognizes that
evacuation routes may vary, which is
why § 118.11(b)(11) includes
‘‘limitations on evacuation routes’’ as a
plan element. A facility may include
more than one diagram to reflect
different scenarios as necessary. Facility
owner or operators may include
evacuation plans prepared in
accordance with 29 CFR 1910.38, but
they must reflect the requirements of
this section.
To the commenter who suggested
cross referencing to evacuation plans
prepared under other statutes, while
EPA understands there is some
redundancy in submitting a plan and in
some cases cross referencing is
appropriate, the Agency maintains
submitting the evacuation plan here
allows OSCs to have the plans readily
available in the event of a worst case
discharge and to inform coordinated
response. However, a facility owner or
operator may combine their plans in a
single ICP to reduce the administrative
burden.
Discharge Detection Systems
The Agency maintains that in the
event of a worst case discharge,
discharge detection systems are critical
to inform response timelines. If a facility
demonstrably has the ability to cause
substantial harm to the environment, it
must also have the ability to detect
when such a discharge is occurring.
EPA notes, however, that the facility
owner or operator may include
personnel procedures (visual
examination, etc.) designed to detect
discharges. EPA recognizes that this
may increase costs but maintains that
the effects of worst case discharges can
be catastrophic and costly (see chapter
3 of RIA in the docket).
EPA disagrees with a commenter who
argued that discharge detection systems
for the 296 CWA hazardous substances
should follow the same requirements as
for oils. The context of this regulation is
for worst case discharges of CWA
hazardous substances, as such,
discharge detection systems should be
sufficient for those events. Additionally,
the Agency notes that these systems
should not be limited to response
actions, as they may alert a facility
owner operator of a discharge in the first
place.
Response Actions
EPA has adjusted the language in this
section to clarify that air monitoring and
water sample collection, including
analytical methods and laboratory
support, must be described in this
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section. Monitoring and sampling are
critical components of CWA hazardous
substance release responses, since many
CWA hazardous substances cannot be
recovered, in contrast to oil discharges,
where recovery is more likely feasible.
Therefore, it is imperative that they be
planned for accordingly. Additionally,
and in the same vein, EPA has added a
requirement to identify types of
environmental monitoring to be
collected, including method collection
techniques, parameter of interest
measurement, a description of how the
data will be used in a response, and
personal protection and safety
considerations.
A facility owner or operator; PWS; or
responding Federal, State, or local
agency can determine whether it is
necessary to obtain a third-party to
assess and monitor the community
health effects following a hazardous
discharge to a PWS and make this
information publicly available. This will
be part of the response actions to a
discharge.
One commenter recommended that
EPA require facilities to develop a safety
plan prior to conducting sampling that
considers variable factors like weather
conditions, chemical hazards, and
situational awareness. EPA notes
provisions for worker health and safety
are found at § 300.150 of the NCP. The
Agency emphasizes that the NCP
requires compliance with applicable
worker health and safety regulations,
including OSHA, under § 300.150(b)
during a response action taken by the
responsible party, the responsible party
must assure that an occupational safety
and health program consistent with 29
CFR 1910.120 is made available for
protection of workers at the response
site.
Finally, EPA has added requirements
for response actions to be taken within
one- and two-hours of discharge
detection. Within one hour of discharge
detection, actions include making
notifications, mobilizing facility
personnel, identifying the extent of the
incident, coordinating with the SRO,
consulting the hazard evaluation to
determine potential effects of the
discharge, ensuring containment and
neutralization systems are working,
evacuation assessment, and
coordination with PWSs and local
responders. Within two hours, resources
and monitoring must be deployed.
Explicitly stating EPA’s expectations
within these critical response time
frames will ensure resources are ready
and available, and guide exercise and
training programs as well as GIUEs,
further enabling readiness.
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Disposal Plans
EPA has adjusted its approach to
include disposal plans for firefighting
foam and runoff. As seen in responses
such as the Menominee Michigan
Warehouse Fire, where several million
gallons of fire suppression water have
been collected to minimize runoff of
fire-related contaminants into to the
Menominee and Marinette water
treatment plant and adjacent
Menominee River,9 these types of plans
are important to ensure chemicals are
properly disposed of and to minimize
runoff of fire-related contaminants.
Containment Measures
One commenter recommended that
EPA define the term ‘‘adequate
containment’’ to prevent industry
confusion and differences in
interpretations by the regions. Adequate
containment will vary based on the
worst case discharge scenario and
associated response actions and consist
of sufficient resources to contain the
items described in § 118.11(b)(15). As
per the statutory authority of this action
under CWA sec. 311(j)(5), this is a
response planning regulation.
Inherently safer technologies and
designs related to CWA hazardous
substance storage are outside the scope
of this rule. Nonetheless, EPA notes that
§ 118.11(b)(15) includes requirements
for measures to provide adequate
containment and drainage of discharged
CWA hazardous substances in a
response scenario, as this is a response
function.
Training Procedures
See section III.D.vi of this preamble
for a discussion of training procedures.
Exercise Procedures
See section III.D.vi of this preamble
for a discussion of training procedures.
Self-Inspection
EPA is finalizing § 118.11(b)(18) as
proposed.
iv. Emergency Response Action Plan
In § 118.11(c), EPA has added a
provision requiring an Emergency
Response Action Plan (ERAP), similar to
the provision under the Oil Pollution
Prevention FRP regulation at 40 CFR
112.20(h)(1). As detailed in the
proposed rule, the ERAP’s purpose is to
provide a summary of steps for
discharge source stabilization, including
immediate actions by the facility
incident management team, such as
internal and external notifications and
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initiation of CWA hazardous substance
discharge preparedness and evacuation
procedures, to be kept in the front of the
CWA hazardous substance FRP or in a
separate binder to accompany the full
CWA hazardous substance FRP. This
requirement will provide important sitespecific information for facility
personnel and responders. EPA has
found ERAPs to be important to plan
holders responding to oil spills and
expects that a CWA FRP ERAP will be
similarly critical for responders to a
CWA hazardous substance worst case
discharge into or on navigable waters or
a conveyance to navigable waters.
v. Coordination Activities
As State and local emergency
response officials are vital participants
in community and facility response
planning, EPA disagrees with the
commenters who requested that EPA
remove § 118.12(c) as well as the
requirement to coordinate drills and
exercises with local public emergency
response officials and invite them to
participate in § 118.13(c)(1). The Agency
maintains that such coordination is
critical for planning for worst case
discharges since public entities are often
involved in response efforts and, as
such, EPA has added language to
include local emergency planning and
response organizations outside of
SERCs, TERCs, LEPCs, and TEPCs in
coordination activities. Additionally,
the rule does not contain language that
State and local emergency response
officials should set drill and exercise
schedules; rather, it states that facility
owner or operators shall include
consulting with the appropriate officials
to establish schedules and plans.
EPA recognizes that, in some cases, it
may be difficult to coordinate with
LEPCs, TEPCs, or other local emergency
planning and response organizations
due to competing priorities or limited
resources. In response, the Agency has
added § 118.12(d)(3), which allows a
facility owner or operator to
demonstrate through documentation
that he or she has made a good faith
effort to coordinate on the schedule
required under § 118.12(a). The Agency
is retaining the requirement to maintain
signed agreements as a compliance tool
and to encourage in-depth, practicable
coordination. Correspondence such as
email may be used for purposes of
documenting good faith efforts, as long
as it is preserved. In terms of retention,
facility owners or operators are expected
to maintain coordination documentation
for the life of the facility. Due to the ease
of storing electronic records, the Agency
does not expect this to be burdensome,
and past agreements and discussions
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may be valuable tools in response
planning, revision, and augmentation.
EPA recognizes that historically,
planning and response has been a
public function. However, as stated in
the OPA Conference Report (H.R. Rep.
No. 101–653, 101st Cong., 2d Sess.), a
major purpose of this action is to shift
the burden of worst case discharge
planning from public resources to
private resources and ensure that
facility owners and operators are
properly planning for worst case
discharges of CWA hazardous
substances into or on navigable waters
or a conveyance to navigable waters.
EPA agrees that facility and community
plans should work in concert to plan for
these events. However, this regulation
does not put requirements on local
emergency responders because that is
beyond the scope and authority for this
action. Nonetheless, EPA notes that
ASTM E3241–20 Standard Guide for
Coordination and Cooperation between
Facilities, Local Emergency Planning
Committees, and Emergency Responders
is a valuable guide and resource and
encourages LEPCs or TEPCs and
emergency responders to familiarize
themselves with the standard. The
Agency is aware that many communities
prepare all hazards plans and reiterates
that this regulation does not require
additional planning by emergency
planners. Instead, facilities must reach
out to these planners and coordinate
FRPs. Community planners then have
access to this information and any other
types of information they may need to
strengthen their community plans.
vi. Facility Response Training, Drills,
and Exercises
EPA proposed and is finalizing with
minor adjustments training
requirements in § 118.13(b). EPA is
retaining a reference to OSHA’s 29 CFR
1910.120 training specific to hazardous
substances, while also ensuring that
training is conducted for facility
personnel, private personnel, casual
laborers, and volunteer responders.
However, in response to commenter
concerns and consistent with the Oil
Pollution Prevention FRP program,
training may be specific to job tasks and
personnel roles. This additional training
will ensure the full population of those
who could respond to a worst case
discharge are prepared. The Agency
notes that 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 (29
CFR 1910.120(a)(1)(v)) and facility
owners or operators should already be
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complying with these requirements.
EPA has added language to § 118.13(b)
to clarify that facility personnel are also
subject to these requirements.
While some commenters suggested
that the provision that requires facilities
to work with and train volunteers and
casual laborers who may respond to a
discharge should be removed from the
FRP requirements and instead a public
entity such as the LEPC or TEPC should
coordinate volunteer and casual laborer
response activities, EPA disagrees, as
this shifts the burden of properly
training response personnel to the
public, which is counter to the intent of
OPA 90. Additionally, there may be
LEPCs or TEPCs that are inactive or do
not have time, personnel, resources, or
capabilities to provide this type of
training.
To account for modern business
practices and the easy of electronic
record storage, EPA has adjusted the
documentation provision in
§ 118.13(b)(4) to allow records to be
maintained under usual and customary
business practices and either as an
annex or included in the FRP.
Under § 118.13(c), EPA is finalizing
the drills and exercises requirements
with minor adjustments. In
§ 118.13(b)(1), a facility owner or
operator must coordinate with local
public emergency response officials
when appropriate and invite them to
participate. EPA has added language in
§ 118.13(c)(1) which allows a facility
owner or operator to demonstrate
through documentation that he or she
has made a good faith effort to
coordinate. Finally. EPA notes that the
Preparedness for Response Exercise
Program (PREP) guidelines will be
updated to reflect the requirements
under 40 CFR part 118, CWA Hazardous
Substance FRPs.
11. Substantial Harm Certification Form
EPA has made several adjustments to
Appendix A: Substantial Harm
Certification Form to reduce confusion
and duplicative entries as well as to aid
in compliance. EPA has adjusted the
initial submission date from one month
to within 60 days of meeting the criteria
in § 118.3(a) and § 118.3(b), for covered
facilities that do not satisfy the
substantial harm criteria in § 118.3(c).
Because substantial harm calculations
and modeling may be involved, the
Agency recognizes that additional time
may be necessary. Those submitting an
FRP will still need to submit a
Substantial Harm Certification Form,
which should add minimal burden,
since this information will be included
in their FRP. However, facilities
submitting their FRPs may submit their
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Appendix A Substantial Harm
Certification Form at the same time.
EPA has added a requirement to list the
ACP(s) consulted in question 3, as well
as list the FWSEs and list and describe
the public receptors potentially affected
by a worst case discharge. This will
allow reviewers to cross check entries
against the ACP. EPA is not requiring
submission of forms to local emergency
response organizations, though covered
facility owners or operators must make
the forms available to local emergency
response organizations upon request.
Covered facility owner or operators
must also recertify their Forms every
five years.
EPA understands why covered
facilities are interested in keeping the
form as simple as possible and has taken
efforts to that effect. However, there are
countervailing reasons for including
more robust information. Completing
and submitting Appendix A ensures
that the covered facility reviews their
potential to cause substantial harm to
the environment and that EPA has
access to updated information in a
timely manner. This approach is based
on the Oil Pollution Prevention FRP
regulation, 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. The inclusion of
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 will
assist EPA in making compliance
determinations as well as provide
sufficient information to identify those
covered facilities that could reasonably
be expected to cause significant and
substantial harm to the environment.
Again, while EPA recognizes that the
form will require time and resources to
complete, the agency maintains that this
information is critical for protecting the
environment and can help covered
facility owner or operators identify risks
at their facilities.
EPA disagrees that these forms will
cause confusion for the public.
Appendix A will be used as a public
information, enforcement, and
compliance tool for this regulation;
thus, the relevant information on CWA
hazardous substance present onsite
must be readily available. EPA has
revised Appendix A in the final rule to
aid in clarity. For example, EPA has
adjusted the language in Question 5 to
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clarify that the reportable discharge
must have been to navigable waters. For
discharges after the effective date of this
rule, EPA expects that covered facility
owners or operators will collect this
information routinely in order to
improve their business practices and
minimize accidental discharges. The
adverse impact reported are limited to
what is listed in Appendix A. In
addition, conforming changes regarding
the requirement to analyze all CWA
hazardous substances above the
threshold level onsite have been made.
Finally, EPA has adjusted the
certification statement for clarity as to
its expectations of the certifier.
12. Confidential Business Information
(CBI)
EPA agrees with commenters
concerned about security and the
sensitivity of certain types of
information and will work with its
Federal partners such as DHS and DOJ
and other appropriate agency security
and cybersecurity experts to determine
which parts of the FRP may not be made
publicly available. Additionally, the
Agency takes personal privacy seriously
and will ensure the safety of individual
information and data.
E. Additional Considerations
1. Climate Change
EPA appreciates the concerns raised
by the commenters and understands
that the unpredictability of breadth of
the impacts of climate change make it
challenging to assess. Because the
impacts of climate change continue to
expand, EPA expects to provide ongoing
compliance assistance and guidance to
assist covered facilities in compliance
with the climate change considerations
in the final rule. That said, EPA
disagrees that climate change impacts
are occurring on a longer-term scale
than can be considered within the FRP’s
five-year cycle. For example, the
increase in severity and frequency of
severe weather, including conditions
resulting in flooding or drought, is a
clear impact of climate change that
should be considered by a covered
facility owner or operator when
evaluating their worst case discharge
scenarios. The agency agrees that
owners or operators should use the best
available climate data when evaluating
climate risks because the climate is
changing rapidly compared to historical
conditions. As part of ongoing
compliance assistance, EPA expects to
make existing and evolving data sources
and tools available. The Agency
recognizes that these evaluations are not
without costs, however, due to the
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known risks of increasing and more
frequent severe weather and other
climate change impacts, their inclusion
in this action is vital to ensure
protection of human health and the
environment.
One commenter stated that, because
climate change could impact factors like
the distance to navigable waters or a
conveyance to navigable waters, EPA
could plan to reassess CWA worst case
scenario discharge risks at a regular
interval to see if the actions’
requirements remain effective. The
Agency notes that FRPs must be
recertified every five years as per
§ 118.4(a)(6), which will give owners or
operators the opportunity to reassess
their worst case discharge scenarios.
Finally, EPA appreciates the suggested
data and information sources suggested
by commenters and will evaluate them
for purposes of ongoing compliance
assistance.
2. Communities With Environmental
Justice Concerns
As discussed in the Preamble to the
proposed rule, there is clear evidence of
co-location of hazardous substance
facilities in or near communities with
environmental justice concerns.
Specifically, the co-location assessment
confirms that industrial facilities and
aboveground storage tanks are
disproportionately located in these
communities and worst case discharges
or threats of worst case discharges of
CWA hazardous substances are
examples of environmental justice
concerns that can affect local
communities. Currently, once a facility
meets the applicability criteria in
§ 118.3, their hazard evaluation
(§ 118.11(b)(3)) must examine impacts
on nearby communities that could be
affected by a discharge. Although, the
final rule does not require consultation
with communities with environmental
justice concerns, there are other avenues
of participation for the public in the
response planning process, including
involvement in the ACP development
process or participation in the LEPC or
TEPC. EPCRA section 303 tasks LEPCs
and TEPCs to develop community
emergency response plans and to share
chemical information to citizens in the
community and is the current avenue
for public participation in these types of
plans, in consideration of communities
with environmental justice concerns.
Existing stewardship programs through
partnerships or company initiatives may
fulfill the requirements in § 118.11(b)(3)
or be augmented to do so. In addition,
one factor RAs may consider in
determining whether to require CWA
hazardous substance FRPs for covered
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facilities is the potential for a worst case
discharge to adversely impact
communities with environmental justice
concerns.
3. Facility Density
EPA recognizes the increased risk of
worst case discharges in areas with a
high density of CWA hazardous
substance facilities that could be
involved in an incident impacting
multiple sites. In § 118.5(b)(10), EPA has
included density of facilities in the
immediate area with CWA hazardous
substances onsite as a factor that an RA
may consider in determining whether to
require that a covered facility owner or
operator to submit an FRP. EPA notes,
however, that the hazard evaluation
(§ 118.11(b)(3)) must already consider
local businesses that could be affected
by a worst case discharge. EPA also
recognizes that there are many factors,
including greenbelts, facility design,
spacing requirements, facility size, and
manufacturing processes, that
complicate considerations for facility
density. Accordingly, the RA must take
all these site-specific circumstances into
account when making a determination.
F. 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 §§ 300.185, 300.211, and
300.411, EPA is finalizing as proposed
minor changes to 40 CFR part 300 to
ensure uniformity. EPA did not receive
any comments on these changes which
include adding references to 40 CFR
part 118 in §§ 300.185 and 300.211,
adding § 300.411 to detail requirements
for responses to CWA hazardous
substance worst case discharges, and
mirroring the requirements for oil worst
case discharges in § 300.324, including
OSC responsibilities to notify the
NSFCC, requiring the FRP be initiated,
implementing ACP worst case discharge
plans, taking response actions, and
coordinating private and public
equipment for response.
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IV. Statutory and Executive Orders
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 14094: Modernizing Regulatory
Review
This action is a ‘‘significant regulatory
action’’ as defined in Executive Order
12866, as amended by Executive Order
14094. Accordingly, EPA submitted this
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action to the Office of Management and
Budget (OMB) for Executive Order
12866 review. Documentation of any
changes made in response to the
Executive Order 12866 review is
available in the docket. The EPA
prepared an economic analysis of the
potential impacts associated with this
action. This Regulatory Impact Analysis,
Clean Water Act Hazardous Substance
Facility Response Plans, is available in
the docket for this action.
B. Paperwork Reduction Act (PRA)
The information collection activities
in this final action have been submitted
for approval to OMB under the PRA, 44
U.S.C. 3501 et seq. The Information
Collection Request (ICR) document
prepared by EPA has been assigned EPA
ICR No. 2710.02. You can find a copy
of the ICR in the docket for this rule,
and it is briefly summarized here. The
information collection requirements are
not enforceable until OMB approves
them.
The CWA hazardous substance
provisions of the final rule include
requirements for onshore nontransportation-related facilities that
could reasonably be expected to cause
substantial harm to the environment,
based on their location, to prepare FRPs
for worst case discharges and submit
them to EPA. Specific CWA hazardous
substance FRP components 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.
EPA has estimated an average annual
total burden for respondents of 984,891
hours per year in the first three years,
average annual labor cost of $69.7
million and operations and maintenance
(O&M) costs of $18.0 million ($87.7
million total cost per year). EPA has
carefully considered the burden
imposed upon the regulated community
by the regulations. EPA believes that the
activities required are necessary and, to
the extent possible, has attempted to
minimize the burden imposed. The
requirements specified in the final rule
are intended to have a mitigating effect
on CWA hazardous substance worst
case discharges because the rule
provisions address the categories of
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damages and adverse impacts expected
from this type of discharge.
Respondents/affected entities: 12,618,
including 7,264 estimated for rule
familiarization and the Substantial
Harm Certification Form; and 5,354
facilities further developing and
maintaining FRPs under the final rule.
Respondent’s obligation to respond:
Mandatory.
Estimated number of respondents:
12,618 responses by 12,618 respondents
during the three-year ICR period. The
overall average number of responses
during the ICR period is 4,206.
Frequency of response: One-time,
then if required to amend an FRP.
Total estimated burden: Average
hours per year: 984,891. Burden is
defined at 5 CFR 1320.3(b).
Total estimated cost: Average cost per
year: $87,705,322 per year.
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 EPA’s regulations in 40
CFR are listed in 40 CFR part 9. When
OMB approves this ICR, the Agency will
announce that approval in the Federal
Register and publish a technical
amendment to 40 CFR part 9 to display
the OMB control number for the
approved information collection
activities contained in this final rule.
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 are 1,509 potentially small
businesses classified under a broad
range of 148 different North American
Industry Classification System (NAICS)
industries, at the five-digit level. For
facilities owned by regulated small
entities, the cost per facility ranges from
$11,753 to $20,064, depending on the
industry. The Agency has determined
that 47 small entities may experience a
cost-to-revenue impact of 1% to 3% of
revenues (or, about three percent of all
small entities). These entities are in four
industries:
• Animal Food Manufacturing (33
small entities).
• Sawmills and Wood Preservation (4
small entities).
• Resin and Synthetic Rubber
Manufacturing (9 small entities).
• Marine Cargo Handling (1 small
entity).
The Agency also estimated 21 entities
(around 1.4 percent of all regulated
small entities), may experience an
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impact greater than 3% of revenue.
These entities include:
• Electric Power Generation (19 small
entities).
• Support Activities for Mining (2
small entities).
As documented in section 8.3 of the
RIA for the final rule, and in accordance
with RFA requirements and SBA
guidance, EPA has prepared a screening
analysis to assess small entity impacts.
This conclusion was reached by
identifying the subset of small entities
regulated by the final action based on
SBA criteria for each NAICS industry.
Then, EPA assessed the potential impact
of the rule on those small entities using
the cost-to-revenue threshold test. The
Agency compared the annualized cost
per small entity to annual revenues and
identified entities where costs exceed
one or three percent of annual revenues.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. This final rule imposes no
new enforceable duty on any State,
local, or Tribal governments or the
private sector.
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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
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action has Tribal implications.
However, it will neither impose
substantial direct compliance costs on
federally recognized Tribal
governments, nor preempt Tribal law.
EPA has concluded that this action may
have Tribal implications because it
requires covered facility owner or
operators to notify their local TEPC if a
worst case discharge should occur and
coordinate with their TEPC on
developing the Facility Response Plan
and any associated community
emergency response planning.
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
covered facilities located on Tribal
lands. EPA notes that these data capture
only a portion of potentially regulated
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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. EPA
consulted with Tribal officials under
EPA Policy on Consultation and
Coordination with Indian Tribes early in
the process of developing this regulation
to enable them to have meaningful and
timely input into its development. EPA
held a national Tribal consultation on
the Clean Water Act Hazardous
Substance Worst Case Discharge
Planning Regulation Proposal in
FY2022. On March 21, 2022, EPA sent
a notification letter via email to Tribal
leaders of all 574 federally recognized
Tribes in lieu of a hardcopy because of
the COVID–19 pandemic. In addition,
EPA hosted one national Tribal
informational webinar on April 6, 2022,
to explain the action, answer questions,
and record Tribal input. Five Tribal
participants attended the webinar. No
Tribes requested government to
government consultation with EPA on
the Clean Water Act Hazardous
Substance Worst Case Discharge
Planning Regulation Proposal. A few
Tribes provided comments during the
webinar. No federally recognized Tribes
submitted comments to the docket
during the public comment process.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 directs Federal
agencies to include an evaluation of the
health and safety effects of the planned
regulation on children in Federal health
and safety standards and explain why
the regulation is preferable to
potentially effective and reasonably
feasible alternatives. This action is not
subject to Executive Order 13045
because the EPA does not believe the
environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
Agency has concluded that the effect of
the requirements codified in this final
rule will mitigate the adverse effects of
environmental and socio-economic
damage that could otherwise result from
worst case discharges. This final action
will therefore not have a
disproportionate adverse effect on
children. However, EPA’s Policy on
Children’s Health applies to this action.
Information on how the Policy was
applied is available under ‘‘Children’s
Environmental Health’’ in the
Supplementary Information section of
this preamble.
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H. Executive Order 13211: Actions 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 requirements specified in the final
rule are intended to result in greater
overall environmental protection. The
final rule will not cause reductions in
the supply or production of oil, fuel,
coal, or electricity; nor will it result in
increased energy prices, increased cost
of energy distribution, or an increased
dependence on foreign supplies of
energy.
I. National Technology Transfer and
Advancement Act
This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations and Executive
Order 14096: Revitalizing Our Nation’s
Commitment to Environmental Justice
for All
The EPA believes that the human
health or environmental conditions that
exist prior to this action result in or
have the potential to result in
disproportionate and adverse human
health or environmental effects on
communities with environmental justice
concerns. Under Executive Order 14096,
‘‘Revitalizing Our Nation’s Commitment
to Environmental Justice for All’’ (which
builds upon Executive Order 12898 10)
agencies must, as appropriate and
consistent with applicable law, identify,
analyze, and address the
disproportionate and adverse human
health and environmental effects
(including risks) and hazards of
rulemaking actions and other Federal
activities on communities with
environmental justice concerns.11 Worst
case discharges of hazardous substances
from facilities regulated by this action
would likely pose disproportionate risks
to such communities located near these
sites e.g., including communities that
have been historically marginalized by
underinvestment and overburdened by
pollution. EPA has concluded that the
regulatory requirements will advance
fair treatment of those communities by
10 Exec. Order No. 12898 of Feb. 11, 1994 (Federal
Actions To Address Environmental Justice in
Minority Populations and Low-Income
Populations), 59 FR 7629 (Feb. 16, 1994).
11 For further information, including the
definition of environmental justice, see Exec. Order
No. 14096 of Apr. 21, 2023 (Revitalizing Our
Nation’s Commitment to Environmental Justice for
All), 88 FR. 25,251 (Apr. 26, 2023).
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reducing the disproportionate damages
that worst case discharges might
otherwise inflict on those areas.
The EPA believes that this action is
likely to reduce existing
disproportionate and adverse effects on
communities with environmental justice
concerns. EPA has concluded that the
regulatory requirements will advance
fair treatment of those communities by
reducing the disproportionate damages
that worst case discharges might
otherwise inflict on those areas. EPA
has concluded that the requirements
codified in this final rule will mitigate
the adverse effects of environmental and
health damage that could otherwise
result from worst case discharges and
are likely to reduce existing
disproportionate and adverse effects on
communities with environmental justice
concerns. EPA has concluded that the
regulatory requirements will advance
fair treatment of those communities by
reducing the disproportionate damages
that worst case discharges might
otherwise inflict on those areas.
The focus of this action is to finalize
new requirements for FRPs for worst
case discharges of CWA hazardous
substances for onshore nontransportation related 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 or a conveyance to navigable
waters. The EPA additionally identified
and addressed environmental justice
concerns associated with the final rule
and qualitatively assessed whether the
requirements codified in this final rule
will mitigate the adverse effects of
environmental and health damage that
could otherwise result from worst case
discharges. EPA has concluded that,
while the changes in this rule were
independent of environmental justice
considerations, the regulatory
requirements will advance fair
treatment of communities with
environmental justice concerns by
reducing the disproportionate damages
that discharges might otherwise inflict
on them. Specifically, EPA has
concluded that:
• Communities with environmental
justice concerns (including
communities historically marginalized
by underinvestment and overburdened
by pollution) are more likely to be in
proximity to those covered facilities
(and thus at greater risk) than other
communities. To the extent that
communities living closer to covered
facilities are more likely to be exposed
if a discharge occurs, potential CWA
FRP facilities pose a greater risk to these
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groups. Therefore, the final action will
reduce risk for these communities.
• The final requirements for FRPs
will improve preparedness planning
and public awareness of planning and
response activities. EPA expects the
final rule requirements will also
enhance EPA’s ability to address areaand regional-specific concerns.
The information supporting this
review is contained in the RIA, section
8.7, which includes an environmental
justice analysis and is available in the
docket for this action.
§ 118.1
K. Congressional Review Act (CRA)
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
impacts due to climate change, such as
the increased frequency and intensity of
extreme weather events, temperature
fluctuations, rising seas, storm surges,
inland and coastal flooding, drought,
wildfires, and permafrost melt in
northern areas 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; or
This action is subject to the CRA, and
EPA will submit a rule report to each
House of the Congress and to the
Comptroller General of the United
States. This action does not meet the
criteria set forth in 5 U.S.C. 804(2).
List of Subjects in 40 CFR Parts 118 and
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 amended
as follows:
1. Add part 118 to subchapter D to
read as follows:
■
Subchapter D Water Programs
PART 118—CLEAN WATER ACT
HAZARDOUS SUBSTANCES FACILITY
RESPONSE PLANS
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.
118.8 Exceptions 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.
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Purpose.
This part establishes Clean Water Act
(CWA) hazardous substance facility
response plan requirements for the
owner or operator of any nontransportation-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.
§ 118.2
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(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 means the
greatest distance a CWA hazardous
substance in a worst case discharge into
or on the navigable waters or a
conveyance to navigable waters can
travel while still having the ability to
cause injury to public receptors or fish,
wildlife, and sensitive environments, as
determined under § 118.3(c)(1) and
(c)(3) using endpoint concentrations
enumerated in Appendix B or adversely
impact a public water system as in
§ 118.3(c)(2).
Endpoint means the concentration at
which a worst case discharge of a CWA
hazardous substance 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 § 118.3(c)(2).
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.
Facility means any 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. Therefore,
contiguous or non-contiguous buildings,
properties, parcels, leases, structures,
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installations, pipes, or pipelines under
the ownership or operation of the same
person may, for legitimate operational
and response planning reasons, be
considered separate facilities.
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 (including to human health)
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 nontransportation-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 § 118.11
or in a specific plan approved by the
Regional Administrator.
Maximum quantity onsite means the
maximum total aggregate quantity for
each CWA hazardous substance present
at all locations within the entire nontransportation-related onshore facility at
any time.
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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 as defined in 40 CFR
120.2, adjoining shorelines, and the
exclusive economic zone.
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 parts 171–
180.
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 part 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.
Person means 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
into or on the navigable waters or a
conveyance to navigable waters from a
non-transportation-related onshore
facility could adversely impact a public
water system or cause injury to fish,
wildlife, and sensitive environments or
public receptors, as described in
§ 118.10.
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Publicly Owned Treatment Works is
defined in 40 CFR 403.3 and includes
Federally Owned Treatment Works.
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 into or on the
navigable waters or a conveyance to
navigable waters.
Public vessel as defined by section
311(a)(4) of the CWA 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
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 nontransportation-related onshore facility is
located.
Reportable quantities mean quantities
that may be harmful as set forth in
§ 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 § 117.21.
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 environment,
public health, or welfare, including, but
not limited to, persons, fish, shellfish,
wildlife, public water systems, and
public and private property, shorelines,
and beaches.
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
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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 means
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 part 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 parts 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 as defined by section 101(28)
of the Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA), means every description
of watercraft or other artificial
contrivance used, or capable of being
used, as a means of transportation on
water; and, as defined by section
311(a)(3) of the CWA, 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 to connect water treatment
plants or water sources (in the absence
of treatment) to customers via a network
of pipes, storage facilities, valves, and
pumps.
Wellhead protection area means the
surface and subsurface area surrounding
a water well or wellfield, supplying a
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public water system, through which
contaminants are reasonably likely to
move toward and reach such water well
or wellfield.
Worst case discharge means the
largest foreseeable discharge in adverse
weather conditions including a
discharge resulting from fire or
explosion.
§ 118.3
Applicability.
This part applies to the owner or
operator of any non-transportationrelated 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 or a conveyance to
navigable waters by meeting the
following criteria:
(a) Threshold quantity. The maximum
quantity onsite for any CWA hazardous
substance listed at 40 CFR 116.4 at any
time, meets or exceeds 1,000 times the
Reportable Quantity in pounds
(kilograms) found at 40 CFR 117.3. Do
not include any exceptions or
exemptions identified in § 118.8. To
calculate the threshold quantities of
CWA hazardous substances in mixtures,
follow the procedures in § 118.9; and
(b) Proximity to navigable waters. The
non-transportation-related onshore
facility boundary or nearest opportunity
for discharge is located within one-half
mile of navigable waters or a
conveyance to navigable waters; and
(c) Substantial harm criteria. The
non-transportation-related onshore
facility meets one or more of the
following substantial harm criteria:
(1) Ability to cause injury to fish,
wildlife, and sensitive environments.
The non-transportation-related onshore
facility is located at a distance to an
endpoint as calculated using a planning
distance in § 118.10(b) such that a worst
case discharge of a CWA hazardous
substance or the aqueous products that
form when the CWA hazardous
substance enters water from the nontransportation-related onshore facility
could cause injury to fish, wildlife, and
sensitive environments. For
identification of fish, wildlife, and
sensitive environments, owners or
operators shall use the applicable Area
Contingency Plan prepared pursuant to
section 311(j)(4) of the CWA, in addition
to identifying other areas pursuant to
the definition in § 118.2;
(2) Ability to adversely impact a
public water system. The nontransportation-related onshore facility is
located at a distance to an endpoint
such that a worst case discharge could
adversely impact a public water system,
as described by the five criteria listed
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under paragraphs (c)(2)(i) through (v) of
this section. This assessment should be
conducted in collaboration with the
downstream public water system(s). If
the owner or operator is unable to work
with the public water system after good
faith efforts to do so, the owner or
operator should use the estimated peak
concentration of the CWA hazardous
substance from a worst case discharge at
the water intake to assess the potential
to adversely impact a public water
system. Ability to adversely impact a
public water system includes a
concentration of a CWA hazardous
substance, or the aqueous products that
form when the CWA hazardous
substance enters water, 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;
(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; or
(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 non-transportationrelated onshore facility is located at a
distance to an endpoint as calculated
using a planning distance in § 118.10(b)
such that a worst case discharge into or
on the navigable waters or a conveyance
to navigable waters could cause injury
to a public receptor as defined in
§ 118.2; or
(4) Reportable discharge history. The
non-transportation-related onshore
facility has had a reportable CWA
hazardous substance discharge under
§ 117.21 within the last five years that
reached navigable waters.
§ 118.4
General requirements.
(a) Preparation, submission, and
implementation of facility response
plans. The owner or operator of any
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non-transportation-related onshore
facility meeting the applicability
requirements of § 118.3 shall prepare,
submit, and implement a facility
response plan according to the
following provisions:
(1) Initially regulated facilities. The
owner or operator of a nontransportation-related onshore facility in
operation on November 30, 2026 that
satisfies the criteria in § 118.3 shall
prepare and submit a facility response
plan that satisfies the requirements of
this section and Appendix A:
Substantial Harm Certification Form to
the Regional Administrator by June 1,
2027.
(2) Newly regulated facilities. The
owner or operator of a nontransportation-related onshore facility
that did not satisfy the criteria in § 118.3
on November 30, 2026, but satisfies the
criteria in § 118.3 after November 30,
2026 or that is notified by the Regional
Administrator pursuant to § 118.5 shall
prepare and submit a facility response
plan that satisfies the requirements of
this section and Appendix A:
Substantial Harm Certification Form to
the Regional Administrator within six
months of meeting the criteria or
notification.
(3) Newly constructed facilities. For a
newly constructed non-transportationrelated onshore facility that commences
operation after June 1, 2027, and is
required to prepare and submit a facility
response plan based on the criteria in
§ 118.3, the owner or operator shall
submit the facility response plan and
Appendix A: Substantial Harm
Certification Form to the Regional
Administrator prior to the start of
operations. Adjustments to the facility
response plan to reflect changes that
occur 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 nontransportation-related onshore facility
required to prepare and submit a facility
response plan after June 1, 2027, as a
result of a planned change in design,
construction, operation, or maintenance
so that the non-transportation-related
onshore facility now meets the criteria
in § 118.3 of this part, the owner or
operator shall submit the facility
response plan and Appendix A:
Substantial Harm Certification Form to
the Regional Administrator before the
portion of the non-transportation-related
onshore facility undergoing the planned
change commences operations.
Adjustments to the facility response
plan to reflect changes that occur during
the start-up phase of operations must be
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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
non-transportation-related onshore
facility required to prepare and submit
a facility response plan after June 1,
2027, as a result of an unplanned event
or change in facility characteristics that
renders the non-transportation-related
onshore facility subject to the criteria in
§ 118.3, the owner or operator shall
submit the facility response plan and
Appendix A: Substantial Harm
Certification Form to the Regional
Administrator within six months of the
unplanned event or change.
(6) Recertification. Owners or
operators must review and recertify
their facility response plans and
Appendix A: Substantial Harm
Certification Forms every five years.
(7) Updated CWA hazardous
substance information in 40 CFR 116.4
or 40 CFR 117.3. If a CWA hazardous
substance is added or removed from the
list maintained at 40 CFR 116.4 or a
reportable quantity adjusted as listed at
40 CFR 117.3, an owner operator shall
update their facility response plan
accordingly within six months.
(b) Facility response plan
amendments. (1) The owner or operator
of a non-transportation-related onshore
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 change that materially may
affect the response to or potential for a
worst case discharge, including:
(i) A change in the nontransportation-related onshore facility’s
configuration that materially alters the
information included in the facility
response plan;
(ii) A change in the CWA hazardous
substance maximum quantity onsite
(i.e., increase or decrease in the
maximum quantity stored onsite) 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
§ 118.11(a)(3);
(iv) A material change in the nontransportation-related onshore 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
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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. 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 nontransportation-related onshore facility
that submits changes to a facility
response plan as provided in the
preceding paragraphs of this section
shall provide an 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
non-transportation-related onshore
facility that he or she has determined
pursuant to § 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 non-transportationrelated onshore facility meets the
criteria in § 118.3(a) and (b) but not (c):
(1) If the non-transportation-related
onshore facility is in operation on
March 30, 2027, complete and submit to
the EPA Regional Administrator the
Substantial Harm Certification Form in
Appendix A to this part by June 1, 2027,
or, for facilities meeting the criteria in
§ 118.3(a) and (b) after March 30, 2027,
within 60 days. Owner or operators
must retain their completed Appendix
A and supporting documentation for the
duration that the CWA hazardous
substance maximum quantity onsite
meets 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 a recertification of the
Substantial Harm Certification Form
every five years, or within 60 days of a
change at or outside the nontransportation-related onshore facility
that impacts the potential to cause
substantial harm to the environment in
accordance with the criteria in § 118.3.
(4) Provide the Substantial Harm
Certification Form in Appendix A to
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this part to local emergency response
organizations upon request.
(d) Assertion of claims of confidential
business information. (1) Except as
provided in paragraph (2) of this
section, an owner or operator of a nontransportation-related onshore 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 § 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 § 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
confidential business information with
respect to information contained in its
facility response plan as per § 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 § 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
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21959
at the non-transportation-related
onshore 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.
§ 118.5 Regional Administrator
determination of substantial harm and
significant and substantial harm.
(a) Regional Administrator authority
to require facility response plans and
amendments. After considering the
factors in paragraph (b) of this section,
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. If such
a determination is made, the Regional
Administrator shall notify the owner or
operator in writing and shall provide a
basis for the determination and the
owner or operator shall submit the
facility response plan to the Regional
Administrator as per the preparation,
submission, and implementation
guidelines in § 118.4. The Regional
Administrator may require amendments
to any facility response plan that does
not meet the requirements § 118.11.
(b) Regional Administrator substantial
harm determination. To determine
whether a non-transportation-related
onshore 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 into or on
the navigable waters or a conveyance 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 and characteristics (e.g.,
ignitability or reactivity) 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
§ 118.3(c)(ii);
(5) Location in a source water
protection area;
(6) Ability to cause injury to public
receptors;
(7) Lack of passive mitigation
measures or systems, including those
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that enhance resilience to climate
change;
(8) Potential to adversely impact
communities with environmental justice
concerns;
(9) Potential vulnerability to adverse
weather conditions resulting from
climate change;
(10) Density of facilities with CWA
hazardous substances onsite in the
immediate area;
(11) Reportable discharge history; or
(12) Other site-specific characteristics
and environmental factors that the
Regional Administrator determines to be
relevant to recovery, shoreline
protection, and cleanup.
(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 § 118.3 to determine whether the nontransportation-related onshore 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 or a conveyance to
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 in writing and:
(1) Approve any facility response plan
that meets the requirements of § 118.11;
and
(2) 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 nontransportation-related onshore 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 or a conveyance to
navigable waters, the Regional
Administrator shall consider the factors
in paragraph (b) of this section and
§ 118.3(c), as well as the following:
(1) Frequency of past reportable
discharges;
(2) Proximity to navigable waters or a
conveyance to navigable waters;
(3) Age or condition 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
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(5) Other facility- and Region-specific
information, including local impacts on
public health.
§ 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 nontransportation-related onshore facility
does not agree that the facility meets the
applicability criteria under § 118.3 or
with the Regional Administrator’s
determination under § 118.5 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 a
conveyance to navigable waters, or that
amendments to the facility response
plan are necessary, 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 written decision with the
basis for the determination as soon as
practicable. The owner or operator shall
then follow the preparation, submission,
and implementation guidelines in
§ 118.4.
(b) Owner or operator request to
reconsider classification status. In the
event the owner or operator of a nontransportation-related onshore facility
believes a change in 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 written decision with the
basis for the determination and notify
the owner or operator as soon as
practicable.
(c) Appeals 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
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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
written decision with the basis for the
determination and notify the owner or
operator as soon as practicable. If the
EPA Administrator determines a nontransportation-related onshore facility is
subject to this regulation, the owner or
operator must submit a facility response
plan to the Regional Administrator
following the preparation,
implementation, and submission
guidelines in § 118.4.
§ 118.7
Petitions.
Any person, including a member of
the public or any representative from a
Federal, State, or local agency who has
a reasonable basis to believe that a nontransportation-related onshore 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 or a conveyance to
navigable waters may petition the
Regional Administrator to determine
whether the facility meets the criteria in
§ 118.3. Such a petition shall include a
discussion of how the factors in § 118.3
apply to the non-transportation-related
onshore facility and EPA shall make the
petition available to the owner or
operator in question and provide an
opportunity to respond. The Regional
Administrator shall consider such
petitions and respond as soon as
practicable in writing including the
basis for the determination. The
Regional Administrator may render a
decision based solely on the information
in the petition but may also gather
additional information before rendering
a decision.
§ 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:
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(1) Any non-transportation-related
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 § 118.3.
This determination must be based solely
upon consideration of the geographical
and location aspects of the nontransportation-related onshore facility
(such as proximity to navigable waters,
land contour, drainage, etc.) and must
exclude consideration of manmade
features such as dikes, equipment,
depressions, 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,
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 parts
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 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
quantity onsite meets or exceeds the
threshold quantity of a CWA hazardous
substance or substances, under
§ 118.3(a), at the non-transportationrelated onshore facility, the following
exemptions apply:
(1) Articles. CWA hazardous
substances contained in articles need
not be considered when determining
whether the maximum quantity 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 quantity onsite
meets or exceeds the threshold quantity:
(i) Structural components. Use as a
structural component of the nontransportation-related onshore facility;
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(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) Wastewater treated by Publicly
Owned Treatment Works. Use of
municipal wastewater entering a
publicly owned treatment works prior to
treatment under a National Pollution
Discharge Elimination System permit;
(vi) Compressed air. Use of CWA
hazardous substances present in air
used either as compressed air or as part
of combustion;
(vii) 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; and
(viii) RCRA hazardous waste. Storage
or accumulation of hazardous waste
regulated under the Resource
Conservation and Recovery Act
Standards for Owners and Operators of
Hazardous Waste Treatment, Storage,
and Disposal Facilities, 40 CFR parts
264 and 265, and Resource Conservation
Recovery Act Standards Applicable to
Generators of Hazardous Waste, 40 CFR
part 262 subpart M.
§ 118.9
Mixtures.
For the purposes of determining the
CWA hazardous substance maximum
quantity onsite at the nontransportation-related onshore facility of
CWA hazardous substance(s), under
§ 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 quantity onsite, as
defined in § 118.2, meets or exceeds the
threshold quantity of any CWA
hazardous substance in the mixture.
(b) If the quantity of one or more of
the CWA hazardous substance
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constituent(s) of the mixture or solution
is unknown, the mixture meets the
threshold when the maximum quantity
onsite of the mixture or solution meets
or exceeds the quantity for the CWA
hazardous substance established in
§ 118.3(a) with the lowest threshold
quantity.
§ 118.10
Worst case discharge.
Non-transportation-related onshore
facility owners or operators are required
to model a worst case discharge
scenario, determine appropriate
endpoints using Appendix B as per
§ 118.3(c)(1) and (3) from a discharge
into or on the navigable waters or a
conveyance to navigable waters,
calculate the distances to endpoints and
CWA hazardous substance planning
distances, and compare the distances to
endpoints against the CWA hazardous
substance planning distances from the
non-transportation-related onshore
facility. If the CWA hazardous substance
planning distances determined are
shorter than the distances to endpoints
as per Appendix B, the worst case
discharge can cause substantial harm.
Owners or operators shall also use their
worst case discharge scenario(s) to
determine if the non-transportationrelated onshore facility has the ability to
adversely impact public water systems
per § 118.3(c)(2) from a discharge into or
on the navigable waters or a conveyance
to navigable waters. The worst case
discharge scenarios must represent each
CWA hazardous substance onsite that
meets or exceeds the threshold quantity
set in § 118.3(a). Each scenario must use
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
quantity of a single container, such as a
bulk storage tank, process vessel, rail
car, or mobile or portable container;
(2) For CWA hazardous substances in
interconnected containers, the
maximum quantity of a group of
interconnected containers; or
(3) For substances in pipes, the
maximum quantity of a pipe or
interconnected pipes, and the owner or
operator must provide evidence in
Appendix A that containers with
common piping or piping systems are
not operated as one unit.
(4) For mixtures of CWA hazardous
substances, follow the procedures in
§ 118.9.
(b) Planning distance determinations.
To determine the distance to endpoints
for fish, wildlife, and sensitive
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environments, public water systems,
and public receptors as referenced in
§ 118.3(c), an owner or operator shall
use a methodology, model, or other
technique that accounts for facilityspecific conditions and accounts for the
stated requirements in this paragraph.
An owner or operator 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. Any models
used for planning distance
determinations shall be used in
exercises conducted per § 118.13.
(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 CWA hazardous
substance planning distance endpoints,
owners or operators shall consider the
following parameters:
(i) Factors affecting overland transport
including:
(A) Nearest opportunity for discharge
into or on the 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 along the overland flow path
into or on the navigable water; and
ignitability and explosive potential;
(ii) Factors affecting in-water
transport including:
(A) Point of entry to navigable waters;
(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
waters which may be affected by: Slope
of the river; hydraulic radius;
turbulence and potential for crosschannel mixing; Manning’s Roughness
coefficient; differentiation of still, tidal
or moving waters; currents; wave height;
tidal influence; and water temperature,
pH, alkalinity, and salinity.
(iii) Adverse weather conditions,
which shall be calculated based on
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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.
§ 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, Area Contingency
Plans, and Regional 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 and Regional
Contingency Plans as per 40 CFR
300.210.
(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;
(ii) Include a signed affirmation that
the owner or operator has reviewed
relevant plans during facility response
plan development and resubmission
and;
(iii) Include a list of area plans and
sub-area plans reviewed.
(2) Qualified individual. Identify the
qualified individual or documented
management system 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;
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(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 worst case 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, the CWA
hazardous substance discharged;
(ix) Coordinate rescue and response
actions as previously arranged with
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
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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
as required by 118.4(a)(6) and (b)(1).
(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; facility location information
described in a manner that would aid a
reviewer and a responder in locating the
facility, EPA identification numbers,
and indication if the facility is located
in or drains into a wellhead protection
area as defined by the Safe Drinking
Water Act of 1986;
(2) Owner or operator information.
Contact information to include name
and preferred contact method;
(3) Hazard evaluation. Hazard
evaluation for worst case discharge into
or on the navigable waters or a
conveyance to navigable waters 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 as per
118.10; impacts to communities with
environmental justice concerns; and
impacts of climate change, including
but not limited to the increased
frequency and intensity of extreme
weather events, temperature
fluctuations, rising seas, storm surges,
inland and coastal flooding, drought,
wildfires, and permafrost melt in
northern areas. Illustrative diagrams of
the hazard evaluation should be
included.
(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 and age
of containers and their contents;
(B) Risk characterization—describe
the process that will be used to establish
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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
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 waters
with additional data including date,
time, and discharge duration; CWA
hazardous substance(s) discharged;
estimated quantity discharged in
pounds; quantity discharged that
reached navigable waters 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
with all data to be retained for the life
of the facility;
(5) Response personnel and
equipment. The identity and a
description of response personnel,
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
§ 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 § 118.2 to ensure the
availability of proper response
personnel and equipment, including
response resources with firefighting
capability and the availability of
resources if facility or mutual aid
resources are not capable of handling a
worst case discharge incident resulting
from a fire or explosion. The owner or
operator of a facility that does not have
adequate firefighting resources located
at the facility or that cannot rely on
sufficient local firefighting resources
through mutual aid agreements must
identify adequate firefighting resources,
including contracted resources. The
response plan must also identify an
individual located at the facility to work
with the fire department in a response.
This individual shall also verify that
sufficient well-trained firefighting
resources are available within a
reasonable response time to a worst case
scenario. The individual may be the
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21963
qualified individual identified in the
response plan or another appropriate
individual located at the facility;
(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, local response team (fire
department or cooperatives), fire
marshal, 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 media 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, explosion potential, and any
other information that may be helpful to
responders and the public, including
updates on the scope and nature of the
discharge as available;
(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 or a description of
documented management system that
can perform the stated functions, as
appropriate;
(10) Response equipment information.
A description of the facility’s response
equipment, including roles in response
actions, location of the equipment, last
inspection or response equipment test
date, inspection frequency, last
deployment drill date, deployment
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frequency, response times, and
equipment testing;
(11) Evacuation plans. Facility-wide
plans for evacuation including a
diagram. Include identification and
documentation of coordination with
community evaluation plans, as
appropriate, and consider 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 into or on the
navigable water or a conveyance to
navigable waters as appropriate,
including personnel (i.e., routine walkaround visual inspection) or automatic
discharge detection for regular and
afterhours operations by CWA
hazardous substance, reliability checks,
and inspection frequency;
(13) Response actions. This section
should describe the 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 worst
case discharges described in § 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 worst case
discharge. Identify the types of
environmental monitoring data to be
collected, collection methods,
techniques for measuring the
environmental parameters of interest
(including established analytical
methods when applicable), a
description of the data’s utility during a
response (including procedures for
sharing data with response personnel
and the public), and required personal
protection requirements and safety
procedures during data collection and
analysis. Include a description of
actions to be taken within:
(i) One hour of discharge detection:
Complete notifications; mobilize facility
response personnel for immediate
response actions; identify the scale of
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the incident and coordinate with SRO
on appropriate response actions;
complete cross-check of worst case
discharge scenarios and resulting
potential effects to begin tactical
planning based on the scale of the
incident; ensure containment and
neutralization systems are operational;
coordinate evacuation of facility, if
necessary; coordinate with drinking
water authorities; mobilize response
equipment, as appropriate; and
coordinate with local police and fire
officials. Initiate community evacuation
plan, if necessary, and evaluate if
downstream (or upstream, if tidally
influenced waterbody) public receptors
that could be impacted and may require
evacuation.
(ii) Two hours of discharge detection:
As appropriate, deploy response
resources identified in the response
plan, including containment and
recovery devices (such as containment
dams, culvert plugs, underflow dams,
containment booms, skimmer
equipment or acid/base neutralization
resources); and initiate any water, soil,
and air monitoring as outlined in the
response plan.
(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
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 including
firefighting runoff management;
(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 § 118.13;
(17) Exercise procedure. Exercise
procedures as per § 118.13 and the
schedule set under § 118.12(c); and
(18) Self-inspection. Written
procedures and records of inspections
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including an inspection checklist and
method to record the inspection date
and findings, to be retained for five
years.
(c) Emergency response action plan.
The response plan shall include an
emergency response action plan that is
maintained in the front of the response
plan, or as a separate document
accompanying the response plan,
addresses the first two hours of the
incident response followed by an
outline of continued operations
appropriate for Incident Command, and
that includes the following information:
(i) The identity and telephone number
of a qualified individual having full
authority, including contracting
authority, to implement removal
actions;
(ii) The identity of individuals or
organizations to be contacted in the
event of a discharge so that immediate
communications between the qualified
individual identified in paragraph (a)(2)
of this section and the appropriate
Federal officials and the persons
providing response personnel and
equipment can be ensured;
(iii) A description of information to
provide to response personnel in the
event of a worst case discharge;
(iv) A description of the facility’s
response equipment and its location;
(v) A description of response
personnel capabilities, including the
duties of persons at the facility during
a response action and their response
times and qualifications;
(vi) Plans for evacuation of the facility
and a reference to community
evacuation plans, as appropriate;
(vii) A description of immediate
measures to secure the source of the
discharge, including the response
actions to be taken in the first two hours
of an incident as per paragraph (b)(13)
of this section, and to provide adequate
containment and drainage of discharged
CWA hazardous substances;
(viii) A description of the potential
discharge pathways of the CWA
hazardous substances to public water
systems, public receptors, and fish,
wildlife, and sensitive environments,
and estimated time of travel; and
(ix) A diagram of the facility
including evacuation routes.
§ 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
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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,
Tribal Emergency Response
Commission or other local emergency
planning and response organizations.
The owner or operator 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 into or on the navigable
waters or a conveyance to navigable
waters.
(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 § 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 and retain that
documentation for the life of the facility,
including:
(1) 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
(2) 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.
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(3) If a facility owner or operator is
unable to coordinate with their State
Emergency Response Commission or
Tribal Emergency Response
Commission, Local Emergency Planning
Committee or Tribal Emergency
Planning Committee, and/or local fire
department, documentation must show
a good faith effort to contact, coordinate,
and consult with those bodies in the
frequency described in this section.
§ 118.13 Facility response training, drills,
and exercises.
(a) The owner or operator of any
facility required to prepare a facility
response plan under § 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 § 118.11.
(b) The facility owner or operator
shall develop a facility response training
program to train facility and non-facility
personnel involved in CWA hazardous
substance response activities. Training
shall be functional in nature according
to job tasks for both supervisory and
non-supervisory operational personnel.
(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 required in § 118.11.
(4) The facility response plan shall
include records, including logs, of CWA
hazardous substance facility response
plan meetings and describe the type of
response training and dates, review of
personnel responsibilities during a
response action, and drills and
exercises. These records may be
included in the facility response plan or
kept as an annex to the facility response
plan. Completed records will be kept for
five years following each activity.
Records required under this part kept
under usual and customary business
practices will suffice for purposes of
this paragraph.
(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
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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. If a facility owner or
operator is unable to coordinate with
local public emergency response
officials, documentation must show a
good faith effort to contact and
coordinate with those bodies.
Appendix A to Part 118: Substantial
Harm 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 quantity onsite of
a CWA hazardous substance greater than or
equal to the CWA Reportable Quantity (RQ)x
1,000?
Yesll Noll
If Yes, list names, CAS no., and maximum
quantities (lbs) onsite for each CWA
hazardous substance:
If No, you do not need to proceed. 2. Is the
facility within one-half mile of navigable
waters or a conveyance to navigable waters?
Yesll Noll
If Yes, list navigable waters and a
description of conveyance(s).
If No, you do not need to proceed.
If the answers to both 1 and 2 are Yes,
answer questions 3–6.3. Is the facility located
at a distance such that a worst case discharge
from the facility could cause injury to fish,
wildlife, and sensitive environments? For
further description of fish, wildlife, and
sensitive environments (FWSE), see the
applicable Area Contingency Plan (ACP).
Attach documentation of the formulas,
assumptions, ACP(s) consulted, and
distances calculated.
Yes ll No ll
4. Is the facility located at a distance such
that a worst case discharge from the facility
could cause injury to public receptors?
Attach documentation of the formulas and
distances calculated.
Yes ll No ll
5. Would a worst case discharge from the
facility cause substantial harm to a public
water system by causing any one, or any
combination of more than one, of the adverse
impacts listed below?
(i) Violates any National Primary Drinking
Water Standard or State Drinking Water
Regulation, such as exceedance of a
Maximum Contaminant Level;
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(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
(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.
Yes ll No ll
Attach documentation of the methodology
and assumptions used to evaluate the
potential of a worst case discharge to cause
each of the adverse impacts (i–v).
For each worst case discharge scenario list:
—CWA hazardous substance name, CAS no.
and worst case discharge quantity (lbs)
—Worst case discharge scenario type (single
container or interconnected containers)
Injury caused to public receptors:
Adverse impacts to public water systems:
NRC report number:
—Name(s) of each FWSE receptor(s) and
planning distance(s) to FWSE (feet or
miles)
—Type(s) and description(s) of public
receptor(s) and planning distance(s) to
public receptor(s) (feet or miles)
—Adverse impacts (i–v) to a public water
system
Attach documentation attesting to the
required consultation with the applicable
downstream public water system, including
name of public water system, point of
contact, and date of consultation for each
potentially impacted public water system. If
efforts to coordinate with the applicable
downstream public water systems were
unsuccessful, provide documentation to
demonstrate the efforts to coordinate and
provide the distance to the first downstream
public water system intake.
6. Has the facility experienced a reportable
CWA hazardous substance discharge to
navigable waters within the last five years?
Yes ll No ll
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):
Navigable water(s) reached:
Injury caused to FWSE:
Certification
I certify under penalty of law that this
document and all attachments were prepared
under my direction or supervision in
accordance with a system designed to assure
that qualified personnel properly gathered
and evaluated the information submitted.
Based on my inquiry of the person or persons
who manage the system, or those persons
directly responsible for gathering the
information, the information submitted is, to
the best of my knowledge and belief, true,
accurate, and complete. I have no personal
knowledge that the information submitted is
other than true, accurate, and complete. I am
aware that there are significant penalties for
submitting false information, including the
possibility of fine and imprisonment for
knowing violations.
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
Endpoints for public receptors
LD50
RQ
(lbs.)
Category
Mammalian toxicity
(oral)
(mg/kg)
Lower
X
A
B
C
D
...............................................................
...............................................................
...............................................................
...............................................................
...............................................................
1
10
100
1,000
5,000
PART 300—NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
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.
3. Amend § 300.185 by revising
paragraph (a) to read as follows:
ddrumheller on DSK120RN23PROD with RULES3
■
§ 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
VerDate Sep<11>2014
20:42 Mar 27, 2024
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0
0.1
1
10
100
Lower
Upper
0.1
1
10
100
500
§ 300.211 OPA facility and vessel
response plans.
*
*
*
*
*
(c) For non-transportation-related
onshore facilities, these regulations are
Frm 00044
Fmt 4701
Aquatic toxicity
(mg/liter)
10%
(mg/kg)
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.
*
*
*
*
*
■ 4. Amend § 300.211 by revising
paragraph (c) to read as follows:
PO 00000
Endpoints for fish, wildlife and sensitive
environments using 96-hour LC50
Sfmt 4700
0.01
0.1
1
10
50
0
0.1
1
10
100
10%
(mg/L)
Upper
0.1
1
10
100
500
0.01
0.1
1
10
50
codified in 40 CFR 112.20 and 40 CFR
part 118;
*
*
*
*
*
■ 5. Add § 300.411 to read as follows:
§ 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
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ddrumheller on DSK120RN23PROD with RULES3
(4) Take whatever additional response
actions are deemed appropriate.
(b) Under the direction of the OSC,
the NSFCC shall coordinate use of
VerDate Sep<11>2014
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private and public personnel and
equipment, including strike teams, to
respond to a worst case discharge and
PO 00000
mitigate or prevent a substantial threat
of such a discharge.
[FR Doc. 2024–05870 Filed 3–27–24; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Rules and Regulations]
[Pages 21924-21967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05870]
[[Page 21923]]
Vol. 89
Thursday,
No. 61
March 28, 2024
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 118 and 300
Clean Water Act Hazardous Substance Facility Response Plans; Final Rule
Federal Register / Vol. 89 , No. 61 / Thursday, March 28, 2024 /
Rules and Regulations
[[Page 21924]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 118 and 300
[EPA-HQ-OLEM-2021-0585; FRL-7881-01-OLEM]
RIN 2050-AH17
Clean Water Act Hazardous Substance Facility Response Plans
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) is
finalizing facility response plan requirements for worst case
discharges of Clean Water Act (CWA) hazardous substances for onshore
non-transportation-related facilities that could reasonably be expected
to cause substantial harm to the environment by discharging a CWA
hazardous substance into or on the navigable waters, adjoining
shorelines, or exclusive economic zone.
DATES: This final rule is effective on May 28, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2021-0585. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through https://www.regulations.gov.
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. 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 incremental costs and benefits of this action?
E. List of Abbreviations and Acronyms
II. Background
A. Statutory Authority and Delegation of Authority
1. Statutory Requirements
2. Delegation of Authority
B. Litigation
C. Proposed Rule
III. This Action
A. General Comments
B. Costs and Benefits of Various Regulatory Provisions
C. Background Analyses
1. CWA Hazardous Substance Discharge History and Impacts
Analysis
2. Analysis of Existing Programs/Technical Background Document
D. Rule Provisions
1. Definitions
2. Applicability
3. General Requirements
4. Regional Administrator Determination of Substantial Harm and
Significant and Substantial Harm
5. Appeals
6. Petitions
7. Exceptions and Exemptions
8. Mixtures
9. Worst Case Discharge Calculations
10. Facility Response Plan Requirements
11. Substantial Harm Certification Form
12. Confidential Business Information (CBI)
E. Additional Considerations
1. Climate Change
2. Communities With Environmental Justice Concerns
3. Facility Density
F. Consistency With the NCP
IV. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review;
and Executive Order 14094: Modernizing 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 and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
A list of entities with facilities 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 Final Rule
------------------------------------------------------------------------
NAICS 3 NAICS description
------------------------------------------------------------------------
111........................... Crop Production.
112........................... Animal Production and Aquaculture.
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.
236........................... Construction of Buildings.
237........................... Heavy and Civil Engineering
Construction.
238........................... Specialty Trade Contractors.
311........................... Food Manufacturing.
312........................... Beverage and Tobacco Product
Manufacturing.
313........................... Textile Mills.
314........................... Textile Product Mills.
321........................... Wood Product Manufacturing.
322........................... Paper Manufacturing.
323........................... Printing and Related Support Activities.
324........................... Petroleum and Coal Products
Manufacturing.
325........................... Chemical Manufacturing.
326........................... Plastics and Rubber Products
Manufacturing.
327........................... Nonmetallic Mineral Product
Manufacturing.
[[Page 21925]]
331........................... Primary Metal Manufacturing.
332........................... Fabricated Metal Product Manufacturing.
333........................... Machinery Manufacturing.
334........................... Computer and Electronic Product
Manufacturing.
335........................... Electrical Equipment, Appliance, and
Component Manufacturing.
336........................... Transportation Equipment Manufacturing.
339........................... Miscellaneous 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.
481........................... Air Transportation.
486........................... Rail Transportation.
488........................... Support Activities for Transportation.
493........................... Warehousing and Storage.
511........................... Publishing Industries (except Internet).
518........................... Data Processing, Hosting, and Related
Services.
522........................... Credit Intermediation and Related
Activities.
531........................... Real Estate.
541........................... Professional, Scientific, and Technical
Services.
561........................... Administrative and Support Services.
562........................... Waste Management and Remediation
Services.
611........................... Educational Services.
622........................... Hospitals.
624........................... Social Assistance.
712........................... Museums, Historical Sites, and Similar
Institutions.
713........................... Amusement, Gambling, and Recreation
Industries.
811........................... Repair and Maintenance.
812........................... Personal and Laundry Services.
921........................... Executive, Legislative, and Other
General Government Support.
924........................... Administration of Environmental Quality
Programs.
926........................... Administration of Economic Programs.
928........................... National Security and International
Affairs.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding affected entities likely to be regulated by
this action. This table includes the types of entities that EPA is
aware could potentially be regulated by this action. Other types of
entities not included in the table could also be regulated. To
determine whether your entity is regulated by this action, you should
carefully examine the applicability criteria found in Sec. 118.3. If
you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
B. What action is the Agency taking?
EPA is finalizing new requirements for Facility Response Plans
(FRPs) for worst case discharges of CWA hazardous substances from
onshore non-transportation related facilities (hereafter, covered
facilities or facility) 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 final rule 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 incremental costs and benefits of this action?
EPA estimated the total incremental costs of the final action by
combining the per-covered facility estimates of compliance costs with
the estimate of the affected covered facility universe. EPA estimated
the annualized cost of the final rule over a 20-year analysis period,
using three percent and seven percent discount rates, as presented in
Table 2.
Table 2--Total Incremental Compliance Cost of the Final Action, Annualized
[2022$]
----------------------------------------------------------------------------------------------------------------
Annualized cost, Annualized cost,
Present value, 7% 7% Present value, 3% 3%
----------------------------------------------------------------------------------------------------------------
Facility Cost................... $1,120,290,646 $105,747,512 $1,641,867,861 $110,359,310
Agency Cost..................... 70,880,205 6,690,590 101,561,496 6,826,528
-------------------------------------------------------------------------------
Total Cost.................. 1,191,170,851 112,438,102 1,743,429,357 117,185,838
----------------------------------------------------------------------------------------------------------------
[[Page 21926]]
The final action is expected to have a mitigating effect on CWA
hazardous substance worst case discharges because the rule provisions
address the categories of damages and adverse impacts expected from
this type of discharge. The planning activities associated with
developing FRPs are likely to mitigate several damage categories
through pre-discharge planning and identification of potential
receptors and applicable endpoints; the emergency response information
provision; descriptions of discharge detection systems, hazard
evaluation, and training programs; and drills and exercises.
Quantifying the costs and benefits of this action is challenging due to
a lack of data around the likelihood of a worst case discharge in the
baseline, the universe of potentially regulated facilities, costs of
program elements, historical discharges, baseline compliance behavior,
and the degree to which the final action will mitigate the probability
and severity of worst case discharges. Despite the numerous
uncertainties associated with estimating the benefits of the final
action quantitatively, information on previous worst case discharges of
a similar nature suggests that the benefits of mitigating these
discharges could be large relative to the final rule's estimated cost.
Chapters 5 and 6 of the final rule Regulatory Impact Analysis (RIA)
developed for this action provide additional details on costs and
benefits, respectively. This analysis, ``Regulatory Impact Analysis:
Clean Water Act Hazardous Substance Facility Response Plans,'' is
available in the docket.
E. List of Abbreviations and Acronyms
ACP Area Contingency Plan
ANFO ammonium nitrate-fuel oil
APA Administrative Procedures Act
BLS United States Bureau of Labor Statistics
CAA Clean Air Act
CAS Chemical Abstracts Service
CBI Confidential Business Information
CFR Code of Federal Regulations
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act of 1980
CFATS Chemical Facility Anti-Terrorism Standards
CRA Congressional Review Act
CWA Clean Water Act
DHS United States Department of Homeland Security
DOI United States Department of the Interior
E.O. Executive Order
EPA United States Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
ERAP Emergency Response Action Plan
FBI Federal Bureau of Investigation
FR Federal Register
FRP Facility Response Plan
FRS Facility Registry Service
FWSE Fish, Wildlife, and Sensitive Environments
GIUE Government-Initiated Unannounced Exercises
HAZWOPER Hazardous Waste Operations and Emergency Response
ICP Integrated Contingency Plan
ICR Information Collection Request
IPAWS Integrated Public Alert & Warning System
LC50 Lethal Concentration 50%
LEPC Local Emergency Planning Committee
MCL Maximum Contaminant Level
MOU Memorandum of Understanding
MTR Marine Transportation-Related
NAICS North American Industry Classification System
NCEI National Centers for Environmental Information
NCP National Contingency Plan
NOAA National Oceanic and Atmospheric Administration
NPDES National Pollutant Discharge Elimination System
NPDWR National Primary Drinking Water Regulations
NPRM Notice of Proposed Rulemaking
NRC National Response Center
NSFCC National Strike Force Coordination Center
O&M Operations and Maintenance
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSC On-Scene Coordinator
OSHA Occupational Safety and Health Administration
POTW Publicly Owned Treatment Works
PRA Paperwork Reduction Act
PREP Preparedness for Response Exercise Program
PSM Process Safety Management
PWS Public Water System
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
SDWA Safe Drinking Water Act
SDWR State Drinking Water Regulations
SERC State Emergency Response Commission
SPCC Spill Prevention Control and Countermeasure
SRO Spill Response Organization
SWPA Source Water Protection Area
TBD Technical Background Document
TEPC Tribal Emergency Planning Committee
TRI Toxics Release Inventory
TSDF Treatment, Storage, and Disposal Facility
U.S.C. United States Code
UMRA Unfunded Mandates Reform Act
USCG United States Coast Guard
USDOT United States Department of Transportation
UST Underground Storage Tank
WOTUS Waters of the United States
ZOC Zone of Concern
II. 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)). The statute defines
a covered facility as ``. . . [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,
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 Executive Order (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:
(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
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 pursuant to the CWA (33 U.S.C.
1321(j)(5)(E)) for this action for facilities that could
[[Page 21927]]
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,
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 ACPs are
required and under relevant FRPs (33 U.S.C. 1321(j)(7)).
EPA intends that the provisions of the rule be severable. In the
event that any individual provision or part of the rule is invalidated,
EPA intends that this would not render the entire rule invalid, and
that any individual provisions that can continue to operate will be
left in place. The rule contains many discrete provisions that operate
independent of each other. For example, the screening criteria are
designed to provide an initial, relatively bright line for identifying
covered facilities that do not need to engage in any further
applicability determination. That is independent of the criteria that
actually determine whether a covered facility could cause substantial
harm to the environment from a worst case discharge into or on the
navigable waters or a conveyance to navigable waters. Thus, the rule
would still satisfy the statutory requirements if the one-half mile
distance screening criterion were struck down. Similarly, the four
substantial harm criteria are independent of one another, and covered
facility owners and operators could still conduct a substantial harm
analysis to determine whether an FRP is required absent any one
substantial harm criterion. Likewise, if the provisions regarding
Regional Administrator (RA) determinations were struck down, the rule
would still meet statutory requirements and fulfill its purpose.
Furthermore, while there are many different components of an FRP, they
serve different functions and are independent requirements.
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. The U.S. Department of Transportation (USDOT) 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 memorandum of understanding (MOU)
between EPA, the U.S. Department of the Interior (DOI), and USDOT (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.
EPA has delegated authority over offshore facilities landward of
the coastline as per 40 CFR part 112 Appendix B. However, this final
action is limited to non-transportation-related onshore facilities as
defined in the consent decree described below.
B. 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 the
CWA section 311(j)(5)(A)(i) and the Administrative Procedures Act
(APA).\1\ The first claim alleged that EPA failed 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 . . . [which]
constitutes a failure to perform a non-discretionary duty or act in
violation of the [CWA].'' The second claim alleged, ``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, Plaintiffs
and EPA entered discussions regarding a potential resolution of the
lawsuit.
---------------------------------------------------------------------------
\1\ 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).
---------------------------------------------------------------------------
The plaintiffs and EPA entered into a consent decree on March 12,
2020, which resolved the claims of the suit.\2\ The consent decree
requires that within two years (24 months) of entry into the consent
decree, i.e., by March 12, 2022, EPA 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 half
years, or 30 months after publication of the proposal. On March 28,
2022 (87 FR 17890), EPA proposed to require planning for worst case
discharges of CWA hazardous substances for onshore non-transportation-
related facilities. This final action satisfies EPA's second obligation
under the consent decree.
---------------------------------------------------------------------------
\2\ Envtl. Justice Health All. for Chem. Reform v. U.S. EPA,
Case1:19-cv-02516-VM, Document 32 (S.D.N.Y., filed March 12, 2020).
---------------------------------------------------------------------------
C. Proposed Rule
On March 28, 2022, EPA proposed 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, with a 60-day comment period, which was later
extended to 120 days. EPA proposed that FRPs must (1) be consistent
with the NCP and ACPs; (2) identify the QI 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; (3)
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) describe the training, equipment testing, periodic
unannounced drills, and response actions of persons at the covered
facility; (5) be reviewed and updated periodically and resubmitted to
the RA for approval of each significant change.
In developing CWA hazardous substance worst case discharge plan
components, EPA considered existing requirements for the Oil Pollution
Prevention FRP regulation under 40 CFR 112.20 given that these
requirements have been in place since 1994 and were promulgated under
the same statutory authority as the proposal. Notwithstanding the
differences between CWA hazardous substances and oil, EPA understands
that, where possible, there is value to having a high
[[Page 21928]]
level of consistency between similar regulatory programs. Even if this
rule applies to a different set of regulated entities, there will be
synergy among local responders, States, and others, such as spill
response organizations (SROs) and consultants, that have experience
with worst case discharge planning. Invariably, the experience of
implementing and complying with the Oil Pollution Prevention FRP
regulation will make this rule easier to comply with, understand, and
implement. Additionally, EPA examined elements under the Risk
Management Plan (RMP) regulation under 40 CFR part 68, which implements
section 112(r)(7) of the Clean Air Act (CAA) and requires facilities
that use regulated substances to develop an RMP. Specific CWA hazardous
substance FRP components in the proposed rule included: 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, and coordination activities.
Eight commenters requested a 60-day extension to submit comments.
In response, EPA extended the original comment period an additional 60
days, to July 26, 2022. EPA received a total of 220 unique comments: 59
organization comments from 53 unique organizations, 158 private
citizens, and 3 mass mailer campaigns representing a total of 29,860
signatories.
III. This Action
After issuing its proposal, EPA received comments on numerous
issues relating to:
1. General comments;
2. Costs and benefits of various regulatory provisions;
3. Background analyses; and
4. Proposed provisions.
EPA has structured this document to address these issues and
discuss each proposal element, related significant comments, and how
any changes EPA considered are reflected in the final rule.
A. General Comments
As discussed above in Section II.A.1 of this preamble, Congress
directed EPA to issue regulations to address worst case discharges for
both oil and CWA hazardous substances, providing clear and unambiguous
authority for this action. While some commenters asserted that the
Agency has the authority to decide not to proceed with the rulemaking
and questioned the data analysis supporting this action, including the
breadth of the potentially regulated community, EPA has judged the
underlying data as sufficient to warrant a regulatory program as
detailed in the RIA, available in the docket. While worst case
discharges historically may be rare, that in and of itself is not a
rationale for not planning for a worst case discharge. This is
especially true given trends in natural disasters in the US, with more
than $1 trillion in damage from 2016-2022,\3\ illustrating that
planning for severe weather events is critical as they become more
common and intense and reflecting the long term challenges posed by
climate change.\4\ Additionally, the requirements follow the statutory
directives set forth in 33 U.S.C. 1321(j)(5)(D). Indeed, OPA 90 is
clear in directing the President to promulgate regulations for worst
case discharges of CWA hazardous substances, regardless of the number
of facilities that may be ultimately regulated. EPA is following the
same approach as the Oil Pollution Prevention FRP regulation, which was
promulgated under the same statutory authority, and as such disagrees
with commenters who argued that the proposal represents administrative
overreach. Worst case discharge planning provisions will appropriately
place response planning responsibilities on covered facility owners and
operators, as is clearly the Congressional intent, as per the OPA 90
Conference Report, while enumerating EPA's role in oversight and
enforcement.
---------------------------------------------------------------------------
\3\ National Oceanic and Atmospheric Administration (NOAA)
National Centers for Environmental Information (NCEI). (2023). U.S.
Billion-Dollar Weather and Climate Disasters. https://www.ncei.noaa.gov/access/billions/, DOI: 10.25921/stkw-7w73.
\4\ U.S. Global Change Research Program (USGCRP). (2017).
Climate Science Special Report: Fourth National Climate Assessment,
Volume I, Chapter 7: Precipitation Change in the United States.
https://science2017.globalchange.gov/chapter/7/.
---------------------------------------------------------------------------
EPA notes that in March 2000, USCG published a notice of proposed
rulemaking (NPRM) in the Federal Register entitled ``Marine
Transportation-Related Facility Response Plans for Hazardous
Substances'' (65 FR 17416, March 31, 2000) under the same CWA authority
as this final rule. USCG then withdrew that rulemaking in February 2019
(84 FR 2799). Given that nearly 20 years elapsed between the proposal
and withdrawal, it is unsurprising that USCG found the proposed rule
was no longer appropriate to the current state of spill response in the
chemical industry. USCG also noted that their NPRM may overlap with
existing local and State regulatory schemes as well as current industry
practice. EPA has reviewed USCG's actions, reports, and findings. EPA
did not find sufficient overlap for onshore non-transportation-related
facilities to justify not promulgating this regulation as per Chapter 2
of the Technical Background Document (TBD), available in the docket.
Finally, to commenters who pointed to the no action final rule under
CWA 311(j)(1)(C) (84 FR 46100, October 3, 2019), that rulemaking is
outside the scope of this final rule and the Agency conclusion there
has no bearing here.
EPA disagrees with commenters who asserted they were not adequately
notified as per the APA. The proposal was clear and the comment period
was ample. Indeed, the Agency extended the comment period to 120 days
from 60 days to accommodate commenters who requested additional time
(87 FR 29728, May 16, 2022).
Several commenters noted that the rule does not fully define
``waters of the United States'' (WOTUS) and that this causes the term
``navigable waters'' to be ``very ambiguous.'' The commenters
highlighted a related and, at the time, pending Supreme Court decision
and EPA rulemaking that would ultimately clarify these concerns. These
commenters stressed the importance of holding off from any final
rulemaking until the court decision is issued or navigable waters is
more clearly defined while additional commenters recommended EPA
release a supplementary proposed rule once `WOTUS' and `navigable
waters' are clearly defined.
EPA disagrees with the comment. Following the Supreme Court's May
25, 2023, decision in Sackett v. Environmental Protection Agency, 143
S. Ct. 1322 (2023), the EPA and Department of the Army developed a rule
to amend the final ``Revised Definition of `Waters of the United
States''' rule consistent with Sackett (88 FR 61964, Sept. 8, 2023).
EPA has determined that the rule should cite to the definition in
40 CFR 120.2 to determine whether a particular water is a water of the
United States, as opposed to establishing a separate definition. The
revised definition provides clarity and citing to this definition will
ensure consistency with the Supreme Court's decision in Sackett, as
well as ensuring greater understanding and consistency
[[Page 21929]]
nationwide. Because this definition is also used by other regulatory
programs, it provides the greatest amount of information and experience
regarding its applicability. The Agency disagrees with commenters who
asserted that this definition is prohibitively technical or costly; and
notes that the September 2023 definition, issued following Sackett,
covers fewer waters than the rule that was in place at the time
comments were received. In sum, it is the Agency's position that the
regulated community has sufficient information to determine whether
they are more than one-half mile from navigable waters or a conveyance
to navigable waters such that they are not subject to the rule. Doing
so, as some commenters suggest, could inadvertently inject unintended
ambiguities or questions about applicability, causing more uncertainty,
not less.
Finally, EPA acknowledges concerns raised about the impact of
litigation and court rulings on post-2015 definitions of ``waters of
the United States,'' and a resulting patchwork of definitions across
the country. Needless to say, this is a different rule and while EPA
recognizes that due to ongoing litigation there is variation among
jurisdictions as to which definition of ``waters of the United States''
governs, e.g., using the pre-2015 definition in the SPCC context,
presumably at some point the litigation will be resolved resulting in
national consistency and, in any event, introducing another variation
would do nothing to advance national consistency. To the contrary,
codifying yet another definition would introduce more complexity within
every jurisdiction by requiring regulated entities that need to comply
with different CWA regulations to navigate two different definitions
within that jurisdiction. Thus, even if currently there is variation
with respect to which definition (pre- or post-2015) applies in
different jurisdictions, there is merit to having the definition be
consistent for regulated parties within their jurisdiction for purposes
of the CWA (see Operative Definition of Waters of the United States
chart at: https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update).
B. Costs and Benefits of Various Regulatory Provisions
EPA estimated the total costs of the final action by combining the
per-covered facility estimates with the estimate of the affected
facility universe. To provide information about the scale of costs that
covered facilities will incur, EPA compiled estimates of unit
compliance costs for each of the program elements in the final action.
EPA developed unit burden estimates for individual elements of the
response plan on a first- and subsequent-year basis. EPA also estimated
the extent of baseline compliance for facilities subject to the rule
due to the overlap in facilities and program elements in the existing
Oil Pollution Prevention FRP, RMP, and Resource Conservation and
Recovery Act (RCRA) regulatory requirements, as these three regulations
have the most significant crossover. EPA estimated an average
compliance cost per covered facility after accounting for baseline
compliance with existing regulations by multiplying labor rates and
unit burdens.
EPA has prepared and posted in the docket an RIA of the potential
costs and benefits associated with this action. As presented in Chapter
5 of that analysis, EPA estimated the final rule will result in total
annualized costs of 112.4 to 117.2 million per year, at 7 percent and 3
percent discount rates, respectively. This cost includes 92.0-93.5
million for existing covered facilities to comply, 13.7-16.9 million
for projected new covered facilities to comply in the future, and 6.7-
6.8 million for the Agency to administer the regulations. Table 3 and
Table 4 present the estimated costs of the final rule by FRP program
component for covered facilities and the Agency, respectively. See
Chapter 6 of the final rule RIA for additional details regarding
benefits of the final action.
Table 3--Total Cost of the Final Action, Facilities, Annualized (2022)
----------------------------------------------------------------------------------------------------------------
Annualized cost, Annualized cost,
Response plan requirements Present value, 7% 7% Present value, 3% 3%
----------------------------------------------------------------------------------------------------------------
Facilities completing the substantial harm certification only
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............ $2,840,473 $268,121 $2,950,783 $198,339
Substantial Harm Certification 51,660,843 4,876,418 57,916,345 3,892,888
Form...........................
-------------------------------------------------------------------------------
Subtotal, Substantial Harm 54,501,316 5,144,539 60,867,128 4,091,227
Certification Form only
facilities.................
----------------------------------------------------------------------------------------------------------------
Facilities developing FRPs
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............ 2,120,519 200,162 2,202,869 148,067
Substantial Harm Determination.. 38,419,664 3,626,544 43,071,820 2,895,103
Facility and Owner Information.. 1,234,121 116,492 1,383,558 92,997
Emergency Response.............. 501,508,344 47,338,840 730,536,570 49,103,533
Hazard Evaluation............... 16,929,190 1,597,996 18,979,110 1,275,694
Discharge Detection............. 1,456,263 137,461 1,632,598 109,736
Response Actions, Disposal, and 7,407,466 699,212 8,304,421 558,188
Containment....................
Drills & Exercises.............. 253,557,291 23,934,015 376,924,100 25,335,220
LEPC/TEPC Coordination.......... 46,538,057 4,392,863 69,523,895 4,673,098
Training........................ 3,597,780 339,605 4,670,568 313,936
FRP Amendments.................. 38,554,948 3,639,314 59,705,771 4,013,166
ERAP............................ 9,234,533 871,675 13,347,586 897,167
-------------------------------------------------------------------------------
Subtotal, FRP facilities.... 920,558,174 86,894,179 1,330,282,867 89,415,904
-------------------------------------------------------------------------------
Subtotal, Existing 975,059,491 92,038,718 1,391,149,995 93,507,131
Facilities.................
-------------------------------------------------------------------------------
Subtotal, Projected New 145,231,155 13,708,794 250,717,866 16,852,179
Facilities.................
-------------------------------------------------------------------------------
[[Page 21930]]
Grand Total, Facilities. 1,120,290,646 105,747,512 1,641,867,861 110,359,310
----------------------------------------------------------------------------------------------------------------
Table 4--Total Cost of the Final Action, the Agency, Annualized (2022)
------------------------------------------------------------------------
Annualized cost, Annualized cost,
Agency cost 7% 3%
------------------------------------------------------------------------
Review Existing Facility Plans...... $1,359,732 $1,126,250
Review New Facility Plans........... 345,366 389,990
Government-Initiated Unannounced 3,846,625 4,141,097
Exercises (GIUEs) and Inspections..
FRP Amendments...................... 289,529 311,693
IT/Data Management and Integration.. 849,339 857,498
-----------------------------------
Total........................... 6,690,590 6,826,528
------------------------------------------------------------------------
The benefits of the final action are assessed qualitatively and
include a wide diversity of potential benefit mechanisms, such as
reductions in impacts to public water systems (PWS) and 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. These benefits include prevention of economic loss
in value of homes near discharges \5\ and the economic losses to
communities affected by a discharge. See Chapter 6 of the final rule
RIA for additional details regarding benefits of the final action.
---------------------------------------------------------------------------
\5\ Burton, K., Maas, A., and Lee, K. (2022). A Case Study in
Contamination: Persistent Home Value Losses Associated with the Elk
River Spill. https://jareonline.org/articles/a-case-study-in-contamination-persistent-home-value-losses-associated-with-the-elk-river-spill/).
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The Agency disagrees with commenters who assert that EPA has
underestimated costs. EPA recognizes commenters' concern that covered
facility owners or operators will need to spend some resources to
determine whether they meet the initial screening criteria, and for
those that do, potentially significantly more resources and time
determining whether they meet any of the substantial harm criteria,
preparing an FRP including in-depth hazard evaluations, and potentially
revising the FRP. The Agency has accounted for these costs, as well as
all other aspects of the regulatory program in Chapter 5 of the final
RIA.
The Agency proposed that if the maximum capacity onsite exceeds
10,000x the reportable quantity (RQ), a covered facility meets the
threshold quantity screening criterion. While EPA proposed a 10,000x RQ
multiplier, the Agency has determined that a 1,000x RQ multiplier will
more appropriately screen for covered facilities that could cause
substantial harm to the environment from a worst case discharge of a
CWA hazardous substance, to fully address the range of potential
releases that merit worst case discharge planning and response. This
results in substantially more covered facilities having to determine
whether they are subject to the planning requirements of the rule,
i.e., meet the initial screening criteria in the first instance, and
analyzing the substantial harm criteria. The Agency also revised the
economic analysis for the final rule, estimating annualized costs for
regulated facilities of approximately 117 million per year, as
documented in section 5.5 the final RIA.
EPA estimated the total costs of the final action by combining per-
facility estimates with the estimate of the affected facility universe.
To provide information about the scale of costs that covered facilities
would incur, EPA compiled estimates of unit compliance costs for each
of the program elements in the final action. EPA developed unit burden
estimates for individual elements of the response plan on a first- and
subsequent-year basis. EPA calculated the annualized total cost to
regulated facilities of the final action over a 20-year analysis
period, using the three percent and seven percent discount rates.
The Agency also notes that the majority of labor burden for
regulated facility staff are estimated using labor rates of $93.50 and
$70.84, based on U.S. Bureau of Labor Statistics (BLS) wage data. The
Agency also recognizes the role of consultants in facility planning
efforts. This cost is accounted for as an annually recurring cost of
$18,471 per facility for contractor support.
C. Background Analyses
1. CWA Hazardous Substance Discharge History And Impacts Analysis
EPA maintains that it has sufficient data to support the need for
this final rule. As detailed in the final rule RIA, 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. 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. While EPA's analysis of NRC data shows a
decline in the average number of CWA hazardous substance discharges
from 2010 to 2019, past discharge history is not a guarantee of future
outcomes, nor does the number of discharges definitively indicate the
level of impact of those discharges. Thus, it's possible that a smaller
number of higher consequence discharges could cause more adverse
impacts due to the circumstances of the incident. Moreover, NRC data
are a starting point for further analysis to inform CWA hazardous
substance worst case discharge occurrences. Based on past experiences
of oil and chemical spills, EPA has observed data gaps with NRC
reports, but continues to improve oil and CWA hazardous substance spill
data as incidents progress through regional and EPA Emergency Operation
Center reporting. Furthermore, NRC
[[Page 21931]]
data is the most complete dataset available, and it does show that CWA
hazardous substance discharges to water continue to occur. Accordingly,
EPA has determined that worst case discharge planning regulations for
CWA hazardous substances are critical to protect the environment, keep
our waterways safe and clean, and protect human health.
While 10 CWA hazardous substances account for most of the CWA
hazardous substance discharges reported to the NRC, as detailed in
section 3.1 of the RIA, these data often lack the names and quantities
of chemicals discharged, and do not reflect future probabilities of
release. Also, the frequency of reported releases does not reflect the
impacts that could occur with a worst case discharge. While some
commenters suggested narrowing the number of CWA hazardous substances
covered by the rule, changing the list of CWA hazardous substances in
40 CFR part 116 is outside the scope of this action.
Moreover, EPA has no reliable information to support the commenter
claim that the industry is already devoting the necessary resources and
capabilities to prevent and respond to discharges that may reach
navigable waters or a conveyance to navigable waters. And even if there
is any merit to the commenter's assertion, that would generally serve
to change the baseline, mitigating the impact of this rule, and not a
reason to have no rule or even the playing field between those that are
responsibly planning for such events and those that are not. In any
case, EPA intends to work collaboratively with industry to ensure
robust response plans for CWA hazardous substance worst case discharges
into or on navigable waters or a conveyance to navigable waters that
could cause substantial harm to the environment. Additionally, while
this final regulation does not address the causes of worst case
discharges, it does require comprehensive response planning regardless
of how a CWA hazardous substance discharge occurs. By focusing on
covered facilities within one half mile to navigable waters or a
conveyance to navigable waters and above the threshold quantity that
also meet one or more proposed substantial harm criteria, the final
regulation will appropriately ensure robust planning for covered
facilities that pose the highest risk of causing substantial harm to
the environment.
2. Analysis of Existing Programs/Technical Background Document
In sum, EPA's analysis found few Federal programs that
comprehensively cover all the CWA section 311(j)(5)(D) requirements for
all CWA hazardous substances. While CWA hazardous substance covered
facilities subject to the Oil Pollution Prevention Program FRP
requirements or RMP regulations, among others, have some overlap for
the required program elements, those programs do not cover all
requirements in CWA section 311(j)(5)(D) for CWA hazardous substances.
EPA also recognizes commenter feedback that industry guidance and
voluntary programs are valuable resources for ensuring safe, protective
practices. However, those practices are not enforceable nor required
and do not fulfill the statutory requirements of this action. In
addition, EPA acknowledges State programs may be comprehensive for CWA
hazardous substance worst case discharge planning. The Agency agrees
with commenters who stated that duplicative requirements should be
avoided and refers the commenters to Chapter 2 of the TBD for more
information and analysis. As such, a regulated facility owner or
operator may augment an existing plan with the requirements of this
rule or use an Integrated Contingency Plan (ICP) approach, such as One
Plan, which will reduce the administrative burden. However, an owner or
operator may not assume they are compliant with this regulation due to
their compliance under other programs (e.g., the Oil Pollution
Prevention FRP regulation, RMP regulation). See the Response to
Comments document for specific responses to each program, in the docket
for this action. Please see section III.D.7 of this Preamble for a
discussion of exemptions.
D. Rule Provisions
1. Definitions
Some commenters requested that EPA revise its definitions of key
terms. EPA has considered these comments carefully as is committed to
providing clarity throughout this action.
i. Adverse Weather
EPA considered comments advocating that the definition of ``adverse
weather'' should be revised. To the extent that commenters are
concerned with ``ambiguity,'' it seems largely because they are
interested in narrowing the definition to a limited number of clearly
delineated events. However, the definition is intentionally broad and
meant to capture the wide range of potential weather changes and
conditions due to the nation's varying regional weather patterns.
Prescribing specific types of events or adverse weather conditions is
unrealistic and does not represent the myriad challenges facing our
nation due to climate change. EPA also disagrees with commenters who
asserted that the breadth of this definition will cause uneven
implementation of the final rule; rather, it will allow covered
facility owners or operators and local emergency planners to consider
the full range of potential adverse weather events, taking into
consideration varying local and regional weather patterns (current and
future), that could impact the covered facility and affect worst case
discharge response planning as well as changing conditions and emerging
threats such as the widening impact of extreme heat. For example, while
specific events, such as ``20-year storm conditions'' may be useful as
one type of climatological condition to consider in one region, EPA
agrees that it is equally important to consider effects of, for
example, increased drought or lack of rain activity in other regions
and the effects on a potential worst case discharges of CWA hazardous
substances. As such, EPA has added language describing some types of
climate change impacts that may need to be considered when accounting
for adverse weather conditions during a worst case discharge of CWA
hazardous substances into or on the navigable waters or a conveyance to
navigable water, such as the increased frequency and intensity of
adverse weather, temperature fluctuations, rising seas, storm surges,
inland and coastal flooding, drought, wildfires, and permafrost melt in
northern areas.
EPA chose to define ``adverse weather'' in this final rule
differently from the Oil Pollution Prevention regulation definition of
adverse weather found in 40 CFR 112.2 due to the variance in
physicochemical properties among oil and the 296 CWA hazardous
substances as well as how different types of adverse weather may impact
the analysis of appropriate response actions for those myriad CWA
hazardous substances. This is another reason why a broad definition of
``adverse weather'' is appropriate for this rule.
EPA recognizes that, given the increased probability of extreme
weather events, historic incidents are becoming less of a predictor of
future effects. Compliance assistance will be available to aid owners
or operators in determining the appropriate types and severity of
weather events, sea level rise, drought, flooding, heat, wildfire, and
subsidence risk, etc., to consider for their worst case discharge in
adverse
[[Page 21932]]
weather, as well as references and data sources.
ii. Container
While several commenters noted that the definition of ``container''
is not consistent with the Oil Pollution Prevention regulation in 40
CFR 112.2 and that there is no corresponding definition in this action
for ``bulk storage container.'' The primary reason for this is because
the two regulations do not cover the same substances. Additionally,
while the Oil Pollution Prevention regulation has determined that a 55-
gallon de minimis container size is appropriate, as noted by
commenters, this is not the case for CWA hazardous substances. To the
contrary, certain CWA hazardous substances have been determined that
they ``may be harmful'' at quantities as low as one pound. Accordingly,
a 55-gallon container size would be an inappropriate de minimis amount
for all substances because smaller containers may contain hazardous
levels of substances that could cause substantial harm in the event of
a worst case discharge, especially when aggregated. Additionally, CWA
hazardous substances are stored in a wide variety of containers, and
CWA hazardous substances are typically measured and regulated \6\ by
mass (e.g., pounds), not volume (gallons), underscoring why a 55-gallon
de minimis container standard would be unsuitable. Because of the
variation of the chemical properties, including toxicity, of CWA
hazardous substances, EPA has no basis for setting a de minimis
container size at 55-gallons or any other level, including the RQ
level, as suggested by some commenters. Furthermore, the OPA Conference
Report states that ``. . . the selection criteria should not
necessarily omit those smaller facilities that are near major water
supplies or that are near environmentally sensitive areas.'' (H.R. Rep.
No. 101-653, 10lst Cong., 2d Sess., p.151.). Threshold determinations
must consider all CWA hazardous substance present at the covered
facility in the aggregate, but without consideration to container size
or capacity because the maximum quantity onsite may contribute to the
potential harm posed by a covered facility. Finally, two commenters
asked for additional examples of containers. Accordingly, EPA notes
that containers may consist of a rail car or other mobile storage not
under active shipping papers, process vessel, canister, drum, bulk
storage tank, dumpster, tote, or bulk cargo container positioned on
land, among other things. For the reasons enumerated above, EPA is
finalizing the definition of container as proposed.
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\6\ EPCRA Reporting Rule (40 CFR part 370), RMP regulation (40
CFR part 68), DHS CFATS (6 CFR part 27), OSHA's PSM (29 CFR
1910.119).
---------------------------------------------------------------------------
iii. Conveyance to Navigable Waters
EPA considered whether to include a rule-specific definition for
``conveyance to a navigable waterway.'' EPA is aware that the CWA
definition of ``point source'' at 33 U.S. Code Sec. 1362(14) uses the
term conveyance and includes some examples. However, EPA determined
that cross-referencing that description of conveyance, with its
specific exclusions, would not be appropriate for this rule. In this
rule, conveyances are a critical consideration in a facility's worst
case discharge scenarios because a straight-line analysis may overlook
an opportunity to travel via pipe or open channel that could more
easily enter navigable waters. Indeed, the concern is not particular
types of structures or pathways (and categorizing them) but that a
conveyance to navigable waters can result in a more immediate discharge
to navigable waters. Moreover, while there are some broad categorical
generalizations that can be made about what constitutes a conveyance to
navigable waters, there are factual elements that necessarily make the
determination a case-by-case determination (even if most of the time it
will be straightforward, if not obvious), i.e., where identifying
particular types of conveyances will not suffice or capture the
variations that exist in the real world.
In any case, in terms of a definition, conveyance is meant to have
its normal English language definition and usage. That said, consistent
with having the elements of the initial screen be relatively
straightforward, EPA is clarifying that it considers a conveyance to
navigable waters in the context of this rule to be a means of transport
that provides a direct pathway to navigable waters. In the majority of
cases, a means of transport will be discernible, confined, and
discrete, and thus will present a straightforward factual scenario.
Some examples are a storm drain, pipe, or channel that discharge
directly into navigable waters.
A few commenters had categorical questions about types of
structures or features such as a dry gulch, a wellhead, subsurface
water or even groundwater. While EPA could make some generalization
that it does or does not expect that any of these examples would serve
as a means of transport, the reality is there will inevitably be
situations where it will depend on the specific facts to determine
whether a given structure or feature (no matter what it is called)
serves as a means of transport to navigable waters. Finally, given the
purpose of the rule, EPA disagrees that the inclusion of a means of
transport that could result in a more immediate discharge to navigable
waters in the initial screen (and in some cases may require some
analysis), makes the reach or scope of the rule ``unbounded.''
iv. Distance to Endpoint
EPA is adjusting the definition of distance to endpoint for clarity
and to reflect that the distance represents the greatest distance a CWA
hazardous substance can travel in a worst case discharge to navigable
waters or a conveyance into or on the navigable waters while still
being able to cause injury to fish, wildlife, or sensitive environments
(FWSE) or public receptors, or adversely impact a PWS.
v. Endpoint
Accordingly with the definition of distance to endpoint above, EPA
is adjusting the definition of endpoint to clarify that it represents
the concentration at which a worst case discharge of a CWA hazardous
substance into or on the navigable waters has the ability to cause
injury to FWSE or public receptors, or adversely impact a PWS.
vi. Facility
Some commenters asserted that the definition of ``facility'' is
unclear while others were concerned about the possibility of
gamesmanship in drawing facility boundaries. EPA is adjusting the
definition to reflect the Preamble to the proposed rule, that stated
that an owner or operator may not make determinations as to what
constitutes a covered facility indiscriminately and in such a manner as
to simply avoid applicability of the final 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 maintains that the flexibility
afforded to owners or operators in determining what constitutes a
covered facility allows those most knowledgeable about its operations
to decide whether it should be aggregated or divided, which may vary
widely due to the range of CWA hazardous substance operations and types
of facilities. Furthermore, EPA notes that it is adopted from the Oil
Pollution Prevention regulation at 40 CFR 112.2, is appropriately
broad, and captures the types of facilities intended
[[Page 21933]]
to be regulated by EPA under CWA hazardous substance worst case
discharge regulations. Please see the Response to Comments document in
the docket for further discussion.
EPA has adjusted the definition to separate out non-transportation-
related onshore facilities for clarity and ease of navigation in the
document.
vii. Injury
Because of the need to maintain consistency with the NCP, the
Agency has determined it is appropriate to use the definition of
``injury'' established by the Natural Resource Trustees for this rule.
Federal officials authorized by the President and the authorized
representatives of Indian Tribes and State and foreign governments act
as public trustees to recover damages to natural resources under their
trusteeship. Under the NCP, each trustee has responsibilities for
protection of resources; mitigation and assessment of damage; and
restoration, rehabilitation, replacement, or acquisition of resources
equivalent to those affected (40 CFR 300.615). EPA maintains that the
definition of ``injury'' is appropriate to assess substantial harm
based on the extensive experience of the Natural Resource Trustees in
conducting evaluations of CWA hazardous substance impacts on natural
resources. The definition of ``injury'' in 40 CFR 112.2 of the Oil
Pollution Prevention regulation was adapted from the definition of
``injury'' in the DOI Natural Resources Damage Assessments (NRDA) final
rule at 43 CFR part 11 and includes only the part of the definition
that addresses oil discharges, which EPA is now adapting for this
regulation to provide regulatory consistency.
In response to the commenters who stated that the definition of
``injury'' could apply to ``insubstantial effects'' rather than
``substantial harm,'' EPA notes that the definition of ``injury'' is
intended to assist in the identification of covered facilities that
could cause substantial harm. The potential for a spill to cause an
injury to FWSE or public receptors is coupled with the screening
criteria to determine if a covered facility could cause substantial
harm to the environment. In that context, causing injury indicates the
potential for a worst case discharge to cause substantial harm to the
environment. EPA concludes that the injury relies on changes that have
been demonstrated to adversely impact the resources in question, or
services provided by those resources.
While ``injury'' to a public receptor as a concept may be new to
the regulatory community, EPA holds that it is an important
consideration due to the variability of CWA hazardous substances, how
they act in water, their effects on human health and the environment,
and their impact on the potentially exposed public. EPA agrees with the
commenter who asserted that just being a measurable effect does not
mean that the effect is ``substantial;'' however, the endpoints in
Appendix B are not limited to just measurable effects. Indeed, the
endpoints are both measurable and indicate a covered facility could
cause substantial harm to the environment due a worst case discharge
into or on the navigable waters or a conveyance to navigable waters.
viii. Maximum Quantity Onsite
EPA has revised the definition of ``maximum capacity onsite'' to
``maximum quantity onsite.'' This is based on the decision to use a
threshold quantity based on quantity, not capacity, discussed below in
section III.D.2.ii. Please note, a covered facility owner or operator
must plan proactively for future anticipated product onsite and FRP
threshold quantities are based on the maximum quantity onsite at any
time for each CWA hazardous substance. For example, a covered facility
with both chlorine and benzene onsite must consider when those CWA
hazardous substances will be at their maximum quantity onsite both as
to whether they meet the threshold quantity and for planning purposes.
If the owner or operator is developing a plan in January and does not
want to amend their plan in the coming months, the maximum quantity
onsite for chlorine may occur in March and the maximum quantity onsite
of benzene may occur in September. For the FRP to be valid without
amendments, it must plan for the maximum quantities onsite for each CWA
hazardous substance at any time, so both maximum quantities onsite,
regardless as to whether the times overlap.
ix. Permanently Closed
EPA is removing the definition of ``permanently closed'' because a
CWA hazardous substance maximum quantity onsite, threshold quantity,
and worst case discharge scenario quantities in the final rule are
based on using quantity, not capacity, discussed below in section
III.D.2.ii.
x. Publicly Owned Treatment Works
EPA is adding a definition for publicly owned treatment works
(POTW), referring to the existing definition in 40 CFR 403.3, but
including federally owned treatment works for the purposes of this
final rule.
xi. Public Receptor
Some commenters suggested that the definition of ``public
receptor'' is too broad. However, EPA's definition of ``public
receptor'' is intentionally so in order to cover a wide variety of
areas through which the public has access to navigable waters and could
be affected by a worst case discharge. EPA did not include first
responders in the definition of public receptor, as one commenter
suggested, because first responders are covered in a facility and
community's health and safety plan and emergency planning.
While this definition is not part of the Oil Pollution Prevention
regulation in 40 CFR part 112, CWA hazardous substances differ from oil
in important and varied ways and require different considerations. For
instance, certain CWA hazardous substances may have no realistic means
of recovery once the substance enters a waterbody, meaning that
receptors must be prepared for and swiftly notified of the diluted
substance as it travels downstream. As with other aspects of this rule,
EPA intends to provide compliance assistance to covered facility owners
or operators on types of areas they should consider when determining
their ability to cause injury to public receptors.
xii. Public Vessel
EPA did not receive any comments on the definition of public vessel
and has adjusted the definition to refer to the definition in section
311(a)(4) of the CWA. This will provide regulatory consistency with
other CWA programs and reflect the statutory authority of this action
rather than creating a new definition just for use in this regulation.
xiii. Vessel
EPA did not receive any comments on the definition of vessel has
adjusted the definition to refer to the sections 311(a)(4) of the CWA
and 101(28) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA). This will provide regulatory
consistency with other CWA and CERCLA programs and reflect the
statutory authority of this action, rather than creating a new
definition just for use in this regulation.
xiv. Water Distribution System
EPA has revised the definition for accuracy and to align with its
use in other EPA programs in order to more
[[Page 21934]]
accurately reflect drinking water system characteristics.\7\
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xv. Wellhead Protection Area
EPA is adding a definition for wellhead protection area for
consistency with the Oil Pollution Prevention FRP regulation and to aid
responders in identifying risks in the event of a worst case discharge
to protect drinking water sources.
xvi. Worst Case Discharge
Some commenters suggested EPA change its definition of worst case
discharge; however, EPA concludes that the current definition is
designed to capture the worst case discharge and consistent with the
statutory authority of this action. It is worth noting, however, that
discharges in compliance with NPDES (40 CFR part 122) are not covered
by this regulation. To commenters concerned with impacts due to climate
change, a largest foreseeable discharge must already be evaluated in
adverse weather conditions, including those due to climate change,
which may include challenging climatic conditions such the increased
frequency and intensity of extreme weather events, temperature
fluctuations, rising seas, storm surges, inland and coastal flooding,
drought, wildfires, and permafrost melt in northern areas. In addition,
EPA refers commenters to 40 CFR 118.10 and section III.D.9 of this
preamble for more specific language and discussion on worst case
discharge calculations.
xvii. Other Definitions
EPA did not receive major substantive comments on the remaining
definitions in Sec. 118.2 and is finalizing them as proposed, with
some separated out for clarity.
2. Applicability
In 40 CFR 118.3, EPA set forth a two-step applicability process,
whereby a covered facility owner or operator assesses two screening
criteria, and, if both criteria are met, the owner or operator then,
and only then, assesses the ability to cause substantial harm to the
environment through four substantial harm criteria (all described in
detail below). To ensure that EPA tied the proposed applicability
provisions to the statutory requirements, the Agency proposed four
substantial harm criteria to target covered facilities that could cause
substantial harm to the environment by discharging into or on navigable
waters or a conveyance to navigable waters. Additionally, EPA proposed
location-based criteria (using both distance from navigable waters or
conveyance and planning distance calculations) to ensure covered
facilities are regulated based on their location, as required by
statute. In combination with the screening criteria, EPA determined
that the substantial harm criteria reflect real world scenarios whereby
a worst case discharge could cause substantial harm to the environment.
Some commenters raised concerns about the level of responsibility on
owners or operators to determine if they are subject to the rule. While
EPA staff will be available to work with facilities and provide
compliance assistance, consistent with Congressional intent, the
responsibility for safeguarding their materials and for planning for a
worst case discharge of CWA hazardous substances into or on the
navigable waters or a conveyance to navigable waters rests first and
foremost with the covered facility owner or operator (H.R. Rep. No.
101-653, 101st Cong., 2d Sess. 1990).
Figure 1--Final Applicability Criteria for CWA Hazardous Substance FRP-
Subject Facilities
[GRAPHIC] [TIFF OMITTED] TR28MR24.014
i. Example of the Applicability Determination Process
Below is a detailed discussion of the applicability determination
process in 40 CFR 118.3. The first step is to complete the screening
criteria, which are to be assessed concurrently; there is no implied
order of which screening criterion to assess initially, and a covered
facility owner or operator may choose to examine either their distance
to navigable waters or a conveyance to navigable waters or threshold
quantity first, whichever is preferable to their circumstances. In this
example, the owner or operator chooses to determine if their maximum
quantity/quantities onsite of CWA hazardous substance(s) meets or
exceeds the threshold quantity first. The aggregate maximum quantity
onsite at any time of benzene (a listed hazardous substance as found in
40 CFR 116.4) is 15,000 pounds. Since benzene has an RQ of 10 and the
RQ multiplier is 1,000, the threshold quantity for benzene is 10,000
pounds. Because the covered facility's maximum quantity onsite exceeds
the threshold quantity for benzene, it meets this screening criterion.
If there are mixtures containing CWA hazardous substances onsite, the
owner or operator must follow the requirements regarding mixtures, as
detailed in section III.D.8 of this preamble. The covered facility
owner or operator then determines whether it has a maximum quantity
onsite at any time that meets or exceeds the threshold quantity for
each other CWA hazardous substance onsite and in mixtures following the
same procedure. Alternatively, if a covered facility does not have any
CWA hazardous substances that meet the CWA hazardous substance
screening threshold (1,000x RQ), it need not
[[Page 21935]]
proceed further with the applicability determination.
Again, if the covered facility meets the CWA hazardous substance
threshold quantity screening criterion, the owner or operator next
determines its distance to navigable waters or a conveyance to
navigable waters. In this instance, the covered facility boundary or
nearest opportunity for discharge nearest to a navigable water or a
conveyance to navigable water as assessed using an online mapping tool
is 0.3 miles. Thus, the covered facility is within one-half mile of
navigable waters or a conveyance to navigable waters. Since the covered
facility meets both prongs of the screening criteria, the owner or
operator then determines whether it meets any of the substantial harm
criteria. If a covered facility is not within one-half mile of a
navigable waters or a conveyance to navigable waters, the owner or
operator need not proceed further.
Similar to the screening criteria, there is no implied order of
operations in determining whether a covered facility meets any of the
substantial harm criteria, and an owner or operator may proceed through
the criteria as preferred. However, unlike the screening criteria
(where both prongs need to be met), if an owner operator determines
that the covered facility meets one of the substantial harm criteria,
the owner or operator must submit an FRP to EPA. In addition, the owner
or operator must still assess the other substantial harm criteria, as
it is important to have a guide to all the potential areas of impact in
the case of a worst case discharge as well as past vulnerabilities as
shown through previous reportable discharges. Therefore, the
assessments for all four criteria must be included in the FRP or
Appendix A: Substantial Harm Certification Form.
Proceeding through each of the substantial harm criteria, for the
substantial harm criteria based on calculating distances to endpoints
(FWSEs and public receptors and the ability to adversely impact a PWS),
EPA expects that covered facility owners or operators will need to
gather information related to the CWA hazardous substances onsite above
the threshold quantity and information relevant to their fate and
transport following a worst case discharge. This may include modeling a
worst case discharge scenario under various flow conditions to obtain
the arrival time, duration, and concentration of the discharge as it
reaches a FWSE, public receptor, or water intake. Typically, low flow
conditions will result in larger peak concentrations of the discharged
substance, and thus could be more likely to cause substantial harm.
Next, a covered facility owner or operator determines whether a
worst case discharge of each CWA hazardous substance with a maximum
quantity onsite above the threshold quantity could cause injury to
FWSE. To calculate the quantity of a worst case discharge for each CWA
hazardous substance onsite above the threshold quantity, the owner or
operator identifies the maximum CWA hazardous substance container,
interconnected containers, pipe, or piping system quantity onsite.
Then, a covered facility owner or operator consults the relevant ACP
(available by contacting their EPA regional office) to identify FWSE
that could potentially be reached by a worst case discharge. To
calculate planning distance, the owner or operator must consider the
factors for overland and in water transport detailed in Sec.
118.10(b)(3)(i) and (ii), as well as adverse weather conditions in
Sec. 118.10(b)(3)(iii) and properties of the CWA hazardous substance
in 40 CFR 118.10(b)(3)(iv) or associated aqueous products. Once an
owner or operator completes the planning distance calculations, they
compare the concentration-based (i.e., mg/L) results to the chart in
Appendix B to determine whether a worse case discharge could cause
injury to FWSE.
To determine whether a covered facility could cause injury to a
public receptor, the owner or operator follows the same steps as for
FWSE, but uses the appropriate concentration-based (i.e., mg/kg)
endpoint values found in Appendix B. To identify public receptors, an
owner or operator may consult local maps, local authorities, their
Local Emergency Planning Committee (LEPC) or Tribal Emergency Planning
Committee (TEPC), or any other available information about 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 into or on the navigable
waters or a conveyance to navigable waters.
To evaluate whether a worst case discharge from a covered facility
could adversely impact a PWS, the owner or operator determines whether
a worst case discharge would result in certain outcomes as detailed
below by working with potentially affected PWSs. Using information
including properties of CWA hazardous substances onsite and information
relevant to their fate and transport arrival time, duration, and
concentration of the discharge as it reaches a water intake, the owner
or operator coordinates with downstream PWSs to determine impacts to
the system and documents that coordination. If the owner or operator
has made and documented good faith efforts but is nonetheless unable to
work with the PWS, the covered facility will use the estimated
concentration of the CWA hazardous substance from a worst case
discharge at the water intake to assess the potential to adversely
impact a PWS. Specifically, an owner or operator must assess each of
the following impacts:
--Violation of a National Primary Drinking Water Standard or State
Drinking Water Regulation: To assess whether a worst case discharge
violates any National Primary Drinking Water Regulations (NPDWR) or
State Drinking Water Regulations (SDWR), a covered facility owner or
operator determines whether the released CWA hazardous substance,
aqueous products, or a chemical product that forms when the CWA
hazardous substance reacts with drinking water treatment chemicals, is
subject to a NPDWR or SDWR, and is predicted to exceed the maximum
contaminant level (MCL) at the point of compliance with the NPDWR or
SDWR. For example, benzene is a CWA hazardous substance and is subject
to a NPDWR with an MCL of 0.005 mg/L measured at the entry point to the
water distribution system. An example of a chemical product that could
form through a reaction is the CWA hazardous substance ammonium
thiocyanate, which reacts with free chlorine to form cyanogen chloride
and/or free cyanide, both of which are acutely toxic above a threshold
and are regulated under SDWA.
--Interference with the ability of PWSs to comply with any NPDWR or
SDWR: To assess whether a worst case discharge compromises the ability
of the PWS to produce water that complies with any NPDWR or SDWR, a
covered facility owner or operator determines whether the released CWA
hazardous substance alters water quality or interferes with treatment
processes in a manner that impacts a PWS's ability to produce water
that complies with an NPDWR or SDWR. For example, a release of a strong
acid, such as sulfuric acid in sufficient quantity may reduce water
alkalinity to a degree where the PWS can no longer maintain adequate
corrosion control, putting it at risk of a violation under the Lead and
[[Page 21936]]
Copper Rule (40 CFR part 141 subpart I).
--Threat to public health: To assess whether a worst case discharge
results in adverse health impacts in people exposed to the maximum
concentration that could enter a drinking water distribution system, a
covered facility owner or operator determines whether the released CWA
hazardous substance, aqueous products, or a chemical product that forms
when the CWA hazardous substance reacts with drinking water treatment
chemicals, is predicted to exceed scientifically accepted reference
concentrations below which adverse human health impacts are not
expected. An example of such reference concentrations are EPA's
established Drinking Water Health Advisories, which are intended to
protect public health during an emergency, such as a chemical release.
As an example, benzene has a one-day Drinking Water health advisory of
0.2 mg/L.
--Contamination of PWS infrastructure: To assess whether a worst case
discharge will contaminate PWS infrastructure, including but not
limited to intake structures, treatment facilities, and drinking water
distribution systems, or premise plumbing systems \8\ to a degree that
requires remediation to restore system components to acceptable
performance, a covered facility owner or operator determines whether
the released CWA hazardous substance, aqueous products, or a chemical
product that forms when the CWA hazardous substance reacts with
drinking water treatment chemicals, is likely to corrode, foul, adhere
to, adsorb into, permeate into, or otherwise damage components and
materials used at any point in the PWS, from the intake through premise
plumbing systems. For example, CWA hazardous substances that are oil-
like can foul water treatment filtration media, making it ineffective.
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--Impact to aesthetic characteristics of drinking water: To assess
whether a worst case discharge 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 PWS to issue use restrictions, a
covered facility owner or operator determines whether the released CWA
hazardous substance, aqueous products, or a chemical product that forms
when the CWA hazardous substance reacts with drinking water treatment
chemicals, is predicted to exceed scientifically accepted reference
concentrations, below which aesthetic impacts from the CWA hazardous
substance are not expected. For example, a CWA hazardous substance at a
concentration above established taste and odor thresholds could prompt
a water system to issue use restrictions, such as a ``do not drink''
order. When available, secondary MCLs established under SDWA should be
used as a reference concentration for aesthetic impacts. For example,
chloride has a secondary MCL of 250 mg/L--above this concentration, the
taste of the water may be unacceptable to customers. Several CWA
hazardous substances, such as hydrochloric acid, would increase the
chloride concentration in water.
When assessing each criterion for substantial harm to PWSs, the
covered facility owner or operator should attempt to work
collaboratively with the downstream PWS(s) to determine precisely how
the worst case discharge would impact the system. Given the complexity
of fate and transport of a CWA hazardous substance in aqueous
environments as well as the impact of drinking water treatment
processes on the CWA hazardous substance, system specific information
from the PWS will facilitate the most accurate assessment for the
potential of the CWA hazardous substance to cause substantial harm to
the PWS. However, if the covered facility owner or operator has made
and documented good faith efforts but is nonetheless unable to work
with the PWS in this assessment, the owner or operator must use the
predicted concentration of the CWA hazardous substance at the drinking
water intake resulting from a worst case discharge, along with
scientifically accepted information about the impact of common water
treatment processes (e.g., chlorination) on the CWA hazardous substance
to make the substantial harm determination.
The covered facility owner or operator must consider each of the
five potentially adverse outcomes to PWSs described above and determine
the concentration at which the adverse outcome could occur. The lowest
concentration at which any of the five adverse outcomes could occur
must be used in the substantial harm determination, and if the
concentration at the reference point (e.g., at the intake, at the entry
point to the distribution system) is equal to or greater than the
concentration at which the adverse outcome could occur, then the
covered facility meets this substantial harm criterion.
Finally, a covered facility owner or operator assesses whether they
have had a reportable discharge of a CWA hazardous substance (a
discharge over the RQ) to navigable waters in the last five years. This
could be accomplished by reviewing discharge records and those
submitted to the NRC in the event of a reportable discharge.
If the covered facility CWA hazardous substance maximum quantity
onsite meets or exceeds the threshold quantity and it is located within
one-half mile of navigable waters or a conveyance to navigable waters,
but does not meet any of substantial harm criteria, the owner or
operator must still submit a Substantial Harm Certification Form
(Appendix A) to EPA, including supporting calculations and modeling. If
the covered facility meets at least one of the substantial harm
criteria, the owner or operator must complete and submit an FRP to EPA
that includes information on each CWA hazardous substance onsite above
the threshold quantity, along with their Substantial Harm Certification
Form.
Below is a detailed discussion of the significant comments and
EPA's responses, as well as adjustments made to the regulatory text.
ii. Threshold Quantity
In 40 CFR 118.3, EPA proposed that if the maximum capacity onsite
exceeds 10,000x the RQ, a covered facility meets the threshold quantity
screening criterion. While EPA proposed using 10,000x RQ multiplier for
threshold quantities, the Agency has determined that a 1,000x RQ
multiplier will more appropriately screen for covered facilities that
could cause substantial harm to the environment from a worst case
discharge. For example, some commenters criticized the 10,000x
multiplier citing a lack of evidence that those facilities under that
threshold quantity would not be reasonably be expected to cause
substantial harm to the environment from a worst case discharge.
Therefore, the commenters urged EPA to take a more precautionary
approach and not exclude these facilities from determining their
ability to cause substantial harm to the environment. Since threshold
quantity is a screening tool, i.e., a covered facility with less than
that amount is not covered by the rule and need not consider whether it
may reasonably cause a worst case discharge in the first instance,
setting a lower initial screening level at this stage has merit,
[[Page 21937]]
since even with less than a 10,000x RQ amount, it is reasonably
foreseeable that a covered facility could cause substantial harm from a
worst case discharge. Said another way, setting the threshold quantity
too high may mean that higher risk covered facilities are not required
to determine their ability to cause substantial harm at all, which
could leave the environment more vulnerable to worst case discharges.
Several commenters supported the initial proposed 10,000x RQ
multiplier, but EPA agrees with other commenters who suggested lowering
the RQ multiplier to 1,000x. See Chapter 2 of the RIA for this final
rule for a detailed analysis of covered facilities with CWA hazardous
substances onsite at the 1,000x and 10,000x RQ multiplier levels. This
analysis shows that at the 1,000x RQ multiplier, a number of additional
covered facilities with CWA hazardous substances onsite that present a
significant threat to downstream PWSs, FWSEs, and public receptors will
need to determine if they meet the substantial harm criteria. For
example, for covered facilities with 1,000x RQ onsite of arsenic
trioxide (arsenic, a known toxin regulated under the Safe Drinking
Water Act (SDWA)), 66% would now meet the quantity threshold, versus
50% at 10,000x RQ. Similarly, for covered facilities with benzene
onsite, a known carcinogen also regulated under the SDWA, 75% would now
meet the threshold quantity versus 32% at 10,000x RQ. A few other
examples include lead sulfate (lead, regulated under SDWA), 66% of
covered facilities at 1,000x RQ versus 17% at 10,000x RQ; sodium
arsenate (arsenic, a known toxin regulated under SDWA), 100% of covered
facilities at 1,000x RQ versus 11% at 10,000x RQ; and hydrogen cyanide
(cyanide, regulated under SDWA), 57% at 1,000x RQ versus 29% at 10,000x
RQ. These additional covered facilities evaluating their substantial
harm criteria will significantly add to protection of the environment.
EPA disagrees with commenters who argued that this lower multiplier
value will bring in too many covered facilities under the rule without
a concomitant increase in environmental protection. First, meeting the
threshold quantity does not automatically make a covered facility
subject to the rule. Second, a lower threshold quantity is appropriate
for an initial screening criterion, ensuring that only covered
facilities that are unlikely to meet the substantial harm criteria are
excluded from the scope of the rule. Accordingly, EPA has judged that
the screening criteria in conjunction with the substantial harm
criteria appropriately targets those covered facilities that could
cause substantial harm to the environment from a worst case discharge
of CWA hazardous substances into or on the navigable waters.
To the commenters who asked for more information on the basis of
the threshold quantity, the RQ multiplier reflects relative toxicity
parameters used to establish the original RQs. See section IV.A.1.a.i
of the proposed rule preamble, Docket ID EPA-HQ-OLEM-2021-0585-0001,
for a discussion on RQs and how they were derived. The RQs provide a
means to use an existing regulatory structure that already considers
risk on a scale and that has been successfully used for release
notification for decades. EPA also balanced the variability among the
296 CWA hazardous substances and tailoring threshold amount against a
uniform, easily applied, mass-based RQ multiplier, as advocated for by
many commenters, deciding on balance in favor of using a single RQ
multiplier. In addition, while the proposal focused on capturing larger
capacity covered facilities that could pose a greater risk, with
additional consideration, in EPA's judgment, a 1,000x multiplier for
determining the threshold quantity as a screening criterion more
effectively represents the potential risks associated with a worst case
discharge.
In this final rule, EPA has adjusted its approach to use maximum
quantity onsite (inventory) rather than maximum container capacity
onsite as the basis for assessing risk to the environment. EPA based
this decision largely on the fact that risk determinations using
maximum quantity onsite will more accurately reflect the hazard posed
and has been used successfully in other EPA chemical regulations, such
that this is standard business practice. Additionally, since containers
are typically measured by volume and CWA hazardous substances may vary
dramatically in weight due to their physical properties, there is not a
clear association between container size and quantity of CWA hazardous
substances onsite, which many commenters raised as an unnecessary
complication. Thus, a covered facility owner, operator, or inspector
would have to convert the volume of each CWA hazardous substance
container onsite to a chemical-specific weight in order to compare
reported values and determine if the covered facility meets the
threshold quantity, exacerbating conversion difficulties discussed in
the proposed rule including at 87 FR 17900 and raised by several
commenters.
While the Oil Pollution Prevention FRP regulations use container
capacity for applicability threshold determination, this is consistent
with how oil is measured and regulated, using volume (gallons). On the
chemical side, CWA hazardous substances (and all chemicals that EPA and
other Federal agencies regulate) are measured and regulated by weight,
typically in pounds. CWA RQs are also weight-based (1, 10, 100, 1,000,
and 5,000 pounds). The OPA Conference Report (H.R. Rep. No. 101-653,
101st Cong., 2d Sess. 1990) specifically directed EPA to account for
oil storage capacity, but it has no corresponding language for CWA
hazardous substances. As oil and the 296 CWA hazardous substances
differ in important and myriad ways, it is reasonable to pursue a
different approach in terms of determining the appropriate amount that
should be used for determining threshold quantities and as a planning
factor.
In so doing, EPA is responding to commenter concerns about covered
facilities that may have capacity for but will never actually have CWA
hazardous substances onsite in quantities sufficient to meet the
threshold quantity but (if capacity were the metric) could be subject
to the rule, especially considering some CWA hazardous substances will
never be stored at the full capacity of a container due to their
physical properties. For example, several commenters noted that for one
of the highest volume and occurrence CWA hazardous substances,
anhydrous ammonia, containers are prohibited to be filled beyond 85%
liquid volume to allow expansion and contraction.
For mixtures, using capacity gets even more complicated, an issue
raised by many commenters, since a covered facility owner or operator,
or EPA inspector would have to convert varying volumes of CWA hazardous
substances into weights, then extrapolate based on their proportions to
the full capacity of the container. This seems needlessly complex and
potentially introduces calculation errors into threshold applicability
determinations and worst case discharge scenario quantities. To add to
the complexity, CWA hazardous substance and mixtures can be present
onsite in myriad types of containers and configurations.
EPA understands the concern regarding fluctuating quantities and
numbers of containers, particularly at certain batch processors and in
some industries and also the use of mobile storage containers and notes
that the maximum quantity onsite must reflect the aggregated quantity
at the covered
[[Page 21938]]
facility across all containers, including but not limited to rail cars
or other mobile storage not under active shipping papers, process
vessels, canisters, drums, bulk storage tanks, dumpsters, totes, or
bulk cargo containers positioned on land. However, EPA disagrees with
commenters who asserted that the only way to adequately plan for
response to worst case discharges is to account for the full storage
capacity for CWA hazardous substances. Indeed, EPA and other Federal
regulators routinely use actual chemical inventory quantities for a
variety of regulatory and planning purposes. EPA intends that an FRP
for CWA hazardous substances be forward-looking and account for the
maximum quantity onsite at any time. On balance, EPA believes that
choosing quantity over capacity is appropriate in terms of
implementability and the risks presented. Moreover, covered facilities
have many incentives to accurately track their inventories over time.
iii. Proximity to Navigable Waters or a Conveyance to Navigable Waters
EPA is retaining the proposed location-based screening criterion
that covered facilities must determine whether they are located within
one-half mile of navigable waters or a conveyance to navigable waters,
while clarifying that this should be measured from the facility
boundary or nearest opportunity for discharge. This distance is based
on research related to the Oil Pollution Prevention FRP regulation. On
balance, while the Agency agrees that there are significant differences
between oil and CWA hazardous substances, one-half mile is an
appropriate distance to infer that a covered facility has a reasonable
expectation to discharge to navigable waters or a conveyance to
navigable waters in the event of a worst case discharge.
Some commenters argued that the distance should be extended farther
for more complete protection of the nation's waters and in the context
of CWA hazardous substances. However, in EPA's analysis, 80% of covered
facilities with CWA hazardous substances onsite were within one-half
mile to navigable waters (see Chapter 2 of the RIA in the rulemaking
docket). To extend the distance would make the criterion effectively
meaningless because nearly every covered facility that meets or exceeds
the threshold quantity would meet this screening criterion. While
commenters were concerned about differences in topography complicating
determinations of whether a covered facility is within one-half mile of
navigable waters or a conveyance to navigable waters, this distance
should be measured from the nearest opportunity for discharge and
industry will be able to comply using widely available electronic
mapping tools. EPA has determined that the one-half mile distance is
protective and simple to calculate, and covered facility owners or
operators will have the opportunity to model a worst case discharge in
evaluating the substantial harm criteria that depend on planning
distance. Additionally, an owner or operator may appeal to the RA if
they believe there is no reasonable expectation to discharge into or on
navigable waters or a conveyance to navigable waters from their covered
facility.
EPA agrees with commenters who stated that one-half mile to
navigable waters or conveyance to navigable waters applicability
requirement is important to minimize harms to the environment. The
Agency again notes that this is an initial screening criterion; it does
not mean that a facility is subject by the rule. Rather, it means that
if a covered facility does not meet either of these initial screening
thresholds, it is not subject to the rule and need not do any further
analysis. Only covered facilities within one-half mile to navigable
water or a conveyance that also meets or exceeds a threshold quantity
must then determine whether they satisfy any of the substantial harm
criteria.
EPA recognizes commenter concerns regarding CWA hazardous
substances that have physical properties (e.g., viscosity, vapor
pressure, etc.) that preclude the substance from reaching navigable
waters or a conveyance to navigable waters. However, a covered facility
owner or operator will consider these properties, and their
implications for the ability of the substance to impact water, when
they evaluate the substantial harm criteria, not in the initial
screening criteria. A covered facility will need to determine its
distance to navigable waters or a conveyance to navigable waters
regardless of the route or method of travel of a CWA hazardous
substance in a worst case discharge.
iv. Substantial Harm Criteria
In Sec. 118.3(c), EPA proposed four substantial harm criteria. EPA
is retaining these criteria in the final rule, with minor
modifications. Below is a summary of changes and responses to major
comments.
Several commenters asserted that the extensive efforts to assess
whether they meet the substantial harm criteria were essentially
requiring compliance with the rule. EPA disagrees with this premise;
indeed, the reason for the initial screening criteria is to mitigate
the impact on covered facilities that would not meet the substantial
harm criteria. However, given the variability of the CWA hazardous
substances at issue (including variations in transport, fate, and other
chemical characteristics), it is inevitable that some covered
facilities that meet the screening criteria will nonetheless not meet
any of the substantial harm criteria. Because of the myriad of
variables involved, the analysis is necessarily case-by-case. And while
simplicity can reduce costs, it also often faces the dilemma of being
either over or under inclusive. So, while EPA determined that simple to
apply, bright line screening criteria were appropriate to satisfy the
requirements of the statute in terms of adequately protecting human
health and the environment, a more nuanced analysis of the substantial
harm criteria to determine which covered facilities must incur the
added cost of preparing an FRP is warranted. Nevertheless, in
principle, EPA agrees that making it as easy as possible to conduct
these assessments is an important goal and will facilitate the
successful implementation of this rule. EPA intends to continue to
identity and provide tools to the regulated community and the public to
support these determinations.
To commenters who suggested a standalone substantial harm criterion
based on the potential impacts of worst case discharges to navigable
waters or a conveyance to navigable waters on communities with
environmental justice concerns, EPA recognizes the unique risks faced
by these communities. In Sec. 118.5(b), an RA may determine that a
covered facility could cause substantial harm to the environment due to
its potential impacts on communities with environmental justice
concerns. Another issue for communities with environmental justice
concerns is the potential cumulative impact of multiple covered
facilities in one area where any one covered facility may not have a
maximum quantity onsite that meets or exceeds the threshold quantity of
CWA hazardous substances, but it seems likely that if one covered
facility experienced a worst case discharge due to extreme weather
conditions, others could be similarly impacted and the collective
effects could cause substantial harm to the environment. Upon
consideration and in response to commenter concerns, an RA may now
consider concerns regarding co-located covered facilities when
determining whether a covered facility has the
[[Page 21939]]
potential to cause substantial harm to the environment.
a. Ability To Cause Injury to FWSE
In Sec. 118.3(c)(1), EPA proposed and is retaining in the final
rule a substantial harm criterion to consider the covered facility's
ability to cause injury to FWSE. Relatedly, the Agency proposed in
Appendix B, and is retaining in the final rule, 10 percent of Lethal
Concentrations 50% (LC50) as the toxic endpoints a covered facility
owner or operator must use to perform planning distance calculations.
FWSEs are identified in ACPs. This regulation does not alter how FWSEs
are identified or what constitutes FWSE. EPA has added language that
facility owners and operators must also consider aqueous products that
form when the CWA hazardous substance enters water to ensure the full
range of risk is represented in this assessment.
EPA disagrees with the commenter who requested that the regulated
community should identify endpoints for individual CWA hazardous
substances (as opposed to categories of CWA hazardous substances) and
incorporate these facility-defined endpoint concentrations given EPA
approval. Determining these on a site-by-site and CWA hazardous
substance-by-substance basis would be prohibitively difficult to
assess. On a case-by-case basis, a covered facility owner or operator
may appeal a substantial harm determination to the RA if they disagree
with the planning distance calculations. EPA maintains that the LC50-
based endpoints appropriately model for effects on wildlife, regardless
of the type of hazardous substance discharge or type of waterbody.
One commenter requested that EPA acknowledge that ``not all
navigable waters identify fish, wildlife, and sensitive environments
and public receptors in their Area Contingency Plans,'' and asked for
flexibility in these determinations because of these situations,
specifically referencing the Oil Pollution Prevention FRP regulation's
vulnerability analysis, Sec. 112.20(h)(4) and section 1.4.1 of
Appendix F. EPA is aware that ACPs currently may not reflect impacts of
worst discharge of CWA hazardous substances to navigable waters.
Working with Federal response partners, the Agency intends to provide
compliance assistance to covered facilities to ensure these areas are
properly identified and impacts are assessed. In addition, the owner or
operator is responsible for identifying public receptors, not just
ACPs.
b. Ability to Adversely Impact a Public Water System
EPA proposed in Sec. 118.3(c)(2) and is retaining in the final
rule the substantial harm criterion for covered facilities located at a
distance such that a worst case discharge has the ability to adversely
impact a PWS. Covered facilities are required to coordinate with the
PWS to determine whether predicted concentrations from a worst case CWA
hazardous substance discharge would result in substantial harm to the
PWS. EPA has added language that facility owners and operators must
also consider aqueous products that form when the CWA hazardous
substance enters water to ensure the full range of risk is represented
in this assessment.
However, several commenters expressed concern with EPA's approach.
Some commenters requested that EPA provide detailed, transparent, and
clear guidance about the applicable drinking water standards to prevent
inconsistencies in implementation and confusion for covered facilities.
An owner or operator must assess the possibility of a worst case
discharge to cause any of the impacts enumerated in Sec.
118.3(c)(2)(ii) through (v). Information that supports this assessment
includes NPDWR, SDWR, human health impact thresholds, taste and odor
thresholds, and physicochemical properties of the CWA hazardous
substance. Furthermore, EPA intends to provide compliance assistance to
covered facility owners or operators in making these assessments,
including resources that crosswalk CWA hazardous substances against
existing NPDWR.
Additionally, several commenters suggested that EPA allow covered
facility owners or operators to show a good-faith effort of
coordination with PWSs through documented attempts, especially in
certain circumstances where coordination is difficult or not possible.
EPA agrees and is revising the requirement to more clearly state that
owner or operators may show a good-faith effort of coordination with
PWSs through documented attempts where coordination is difficult or not
possible.
(i) Alternative Approaches
--Source Water Protection Areas (SWPAs): As part of the proposal, EPA
considered requiring covered facilities within SWPAs to prepare an FRP.
Although several commenters supported this approach, largely for the
reasons enumerated in the proposal preamble at IV.A.2.b.ii EPA has
decided not to finalize this requirement. On the one hand, SWPAs would
be a useful tool that could eliminate the need for distance planning if
they were universally available and uniformly applied. However, they
are not. Moreover, EPA is concerned with the burden that would be
placed on State drinking water programs to respond to requests for
SWPAs from covered facilities if this were a requirement of the rule.
Commenters provided no data or information to support the assertion
that responding to requests for SWPAs from covered facilities would
likely not place a significant burden on State drinking water programs.
One purpose of this final regulation is to implement congressional
intent by shifting the responsibility for planning from public
resources to private covered facilities that pose a substantial risk to
the environment in the event of a worst case discharge into or on the
navigable waters or a conveyance to navigable waters, not create new
burdens for State drinking water programs or PWSs. Furthermore,
requiring additional updating of SWPAs or uniformity in their
application so that they could be used as a substantial harm criterion
is outside the scope of this rulemaking.
--Groundwater: Including potential discharges to groundwater is outside
of the scope of this final rule, which is specific to onshore non-
transportation-related facilities that, because of their location,
could reasonably be expected to cause substantial harm to the
environment by a worst case discharge into or on navigable waters or a
conveyance to navigable waters. Nonetheless, several commenters
requested that EPA include a provision to protect groundwater under the
final rule. One commenter recognized that groundwater is not
jurisdictional water of the United States under the CWA but argued that
the rule affects the quality of groundwater drawn by groundwater-
supplied PWSs regulated under the SDWA as well as nearby groundwater
users and other downstream surface water users if the groundwater
discharges to surface water. Again, navigable waters does not, by
definition, include groundwater.
--Zones Of Concern (ZOCs): EPA disagrees with commenters who posited
that the source water zones of concern (ZOCs) described in the report
``Occurrence of Releases with the Potential to Impact Sources of
Drinking Water'' (EPA 817-R-21-001) are appropriate for this
regulation. The ZOCs used in the study described in the referenced
report were
[[Page 21940]]
intended to provide a uniform definition for identifying whether
releases captured by the NRC would be included in the analysis or not.
The methodology was not designed to identify worst case discharges. As
noted in Section 2.6 of the referenced report: Limitations of the
Methodology, ``It is possible that releases significantly impacting a
source of drinking water occurred outside a zone of concern.
Conversely, it is also possible that releases within a zone of concern
did not significantly impact the source water.'' The criteria in the
final rule, which are based on whether a worst case discharge from a
covered facility could cause substantial harm to a PWS are outcome
based and therefore will more appropriately target covered facilities
for regulation compared to the ZOCs in the referenced report.
c. Ability To Cause Injury to Public Receptors
In Sec. 118.3(c)(3), EPA proposed a substantial harm criterion for
covered facilities that could cause injury to public receptors through
a worst case discharge into or on navigable waters or a conveyance to
navigable waters, using the same parameter and toxic endpoint approach
proposed for FWSE. EPA is retaining this provision in this final
action. Several commenters expressed concern with EPA's proposal to
have a separate substantial harm criterion for covered facilities that
could cause injury to public receptors through a worst case discharge
into or on the navigable waters or a conveyance to navigable waters and
asserted that this is out of scope of the CWA. EPA disagrees that this
substantial harm criterion does not fall under the scope of the CWA or
the stated purpose of this final rule. The scope of the rule is onshore
non-transportation-related facilities that, because of their location,
could reasonably be expected to cause substantial harm to the
environment by a worst case discharge into or on navigable waters or a
conveyance to navigable waters. Public receptors are defined as areas
through which the public has access to navigable waters, thus tying
this criterion to the statutory authority.
Covered facility owner or operators should include impacts to
public receptors in their hazard evaluations in Sec. 118.11(b)(3),
based on the physicochemical properties of the CWA hazardous substances
onsite and their potential effects as well as the potential economic
effects to businesses.
d. Reportable Discharge History
In Sec. 118.3(c)(4), EPA proposed, and is retaining in the final
action, that a reportable discharge history is a substantial harm
criterion, meaning the covered facility has had a discharge of a CWA
hazardous substance at or exceeding the RQ, as listed in 40 CFR 117.3,
that violates CWA section 311(b)(3), i.e., that reaches navigable
waters or adjoining shorelines. If a covered facility that meets the
screening criteria has had a reportable discharge within the last five
years that reached navigable waters, it will be considered to have the
potential to cause substantial harm in the event of a worst case
discharge. Reportable discharge history will be limited to the
preceding five years, so if a covered facility has had a reportable
discharge outside of that date range, it does not meet that substantial
harm criterion. EPA clarifies here that discharges permitted under
National Pollutant Discharge Elimination System (NPDES) are not subject
to this regulation (40 CFR part 122).
EPA notes that the fact that a reportable discharge in this context
means that the discharge entered into or on navigable waters in
quantities that may be harmful. Furthermore, these discharges are
required to be reported to the NRC, so evaluating whether a covered
facility has had one in the last five years should add no burden.
Additionally, discharge history may indicate deficiencies at a covered
facility and so warrant further care and additional planning, as shown
in the related study of oil spills discussed in the preamble to the Oil
Pollution Prevention FRP regulation (58 FR 8832, February 17, 1993).
EPA maintains that five years is a reasonable look back window and
ample time for a covered facility to improve spill resilience as
demonstrated through the lack of reportable discharges into or on
navigable waters. EPA agrees with commenters that limiting the
reportable discharge releases into or on navigable waters is reasonable
and has added clarifying text to the final rule. The Agency is not
expanding the discharge history criterion to cover other reportable
discharges (e.g., to land) given that the authority for this action is
specific to impacts into or on navigable waters, adjoining shorelines,
or exclusive economic zone.
e. Passive Mitigation, Administrative Controls, and Secondary
Containment
EPA did not propose and is not including provisions regarding
passive mitigation, administrative controls, or secondary containment
in this rule. This is a planning regulation, as per its statutory
authority under the CWA 311(j)(5). As such, the Agency is not
incorporating mitigation techniques into the screening criteria,
determinations of substantial harm, nor in the FRP hazard evaluation.
As per the CWA, as amended by the OPA, a worst case discharge is
defined as ``the largest foreseeable discharge in adverse weather
conditions.'' The OPA Conference Report goes on to state that the
largest foreseeable spill from a given type of facility is intended to
describe a case that is worse than either the largest spill to date or
the maximum most probable spill for that type of facility. Further,
Congress' intent was that the worst case discharge reflects the partial
failure of various preventive systems, and that the private sector be
encouraged to increase its spill response capability (H.R. Rep. No.
101-653, 101st Cong., 2d Sess. 1990). Relatedly, in extreme weather
events, mitigation systems may fail. In addition, written
administrative controls may be overridden or overlooked, making it
foreseeable that a worst case discharge could occur notwithstanding
such controls.
Furthermore, although EPA encourages covered facilities to
implement additional release prevention, detection, and mitigation
measures such as those cited by commenters, the Agency believes that
the effects of these measures on the size and impact of a potential
spill are not readily quantifiable, nor easily supported with
historical spill evidence. CWA hazardous substances vary widely in
physicochemical properties and prevention and response strategies
correspondingly differ based on the substance. EPA maintains that
incorporating factors into the worst case discharge calculation that
consider the risks associated with a variety of site-specific
conditions regarding passive mitigation or administrative controls
will, in general, be too complex for this rulemaking, and will require
a very detailed verification and inspection processes. Requirements to
prevent CWA hazardous substance discharges are based on many different
regulatory regimes and industry standards and thus may be difficult for
an inspector to assess and requiring installation or operation of such
systems is outside the scope of this final action. As a result, EPA
does not believe that it is feasible or warranted to include a
calculation of mitigation measures tied to a reduction in the worst
case discharge volume. Nonetheless, if an owner or operator
[[Page 21941]]
believes that the circumstances of the covered facility are such that
it could not cause substantial harm to the environment from a worst
case discharge to navigable waters or a conveyance to navigable waters,
they may appeal the substantial harm determination to their RA.
For these reasons, EPA maintains that it is inappropriate to
include secondary containment, administrative controls, and passive
mitigation in this final rule.
f. Transfers Over Water
EPA did not propose an additional or different substantial harm
criteria for covered facilities that transfer CWA hazardous substances
over water. The Agency received comments both supporting and opposing
such a provision. EPA has decided against including one in this final
action. First and foremost, the USCG has primary responsibility for MTR
facilities and would be the implementing Agency for any CWA hazardous
substance FRP regulations for that type of facility. Should the USCG
initiate a rulemaking for facilities over which it and the Agency share
jurisdiction, the two agencies will collaborate to ensure consistency.
Moreover, EPA did not receive data or information to support adding
this as a substantial harm criterion. EPA notes that should a covered
facility within EPA's jurisdiction have a reportable discharge during
transfers over water, this would meet the Sec. 118.3(c)(4) substantial
harm criterion (i.e., reportable discharge of a CWA hazardous
substances under Sec. 117.21 within last five years).
3. General Requirements
In Sec. 118.4, EPA proposed and is finalizing, with some
adjustments, general requirements and compliance dates for CWA
hazardous substance FRPs. In Sec. 118.4(a), to aid in informing the
regulated community of their responsibilities under this regulation,
the Agency has added ``implement'' to the list of items a covered
facility must do regarding their FRP. This will reduce uncertainty and
make clear that plans must be in place and followed.
In Sec. 118.4(a), EPA has changed the language for plan submission
to emphasize that there is an initial 36-month implementation period.
This will allow covered facilities ample time to familiarize themselves
with the rule requirements, gauge seasonal and commodity flow-related
inventory fluctuations to determine the maximum quantity onsite at any
time, perform planning distance calculations, and prepare their plans.
Plan preparation, submission, and implementation timelines are as
follows:
--Initially regulated covered facilities (covered facilities in
operation on November 30, 2026, and that meet the criteria in Sec.
118.3 or are notified by an RA as in Sec. 118.5): by June 1, 2027.
--Newly regulated covered facilities (covered facilities that meet the
criteria in Sec. 118.3 or are notified by an RA as in Sec. 118.5
after November 30, 2026: Within 6 months.
--Newly constructed covered facilities (covered facilities starting
operations after June 1, 2027: Prior to the start of operations and
including a 60-day start up period adjustment phase.
--Covered facilities regulated as a result of a planned event or
change: Prior to the start of operations and including a 60-day start
up period adjustment phase, but no sooner than June 1, 2027. An example
of a facility characteristic change could be processing expansion
whereby nearest opportunity to discharge moves within one-half mile to
navigable waters or a conveyance to navigable waters, such as adding a
rail spur.
--Covered facilities regulated as a result of an unplanned event or
change: Prior to the start of operations and including a 60-day start
up period adjustment phase, but no sooner than November 30, 2026.
Newly constructed covered facility owners or operators should use
projected CWA hazardous substance maximum quantities onsite to develop
the FRP, which can then be adjusted during the 60-day operational start
up period.
For covered facilities meeting the criteria in Sec. 118.3(a) and
(b), Appendix A: Substantial Harm Certification Forms must be submitted
to EPA by June 1, 2027, while covered facilities meeting that criteria
at a later date have 60 days to submit their forms to EPA, but no
sooner than June 1, 2027. The Agency has adjusted this timeline from
one month to recognize that the required calculations may require
additional time and resources.
EPA recognizes that some commenters believe that the timelines
provided are too short or insufficient for FRP development and
submission. In response, all covered facilities now have 36 months
following the effective date to comply with the requirements in 40 CFR
part 118. On the other hand, some commenters would prefer a swifter
implementation period. However, due to resource constraints and the
complexity of implementing a new regulatory program, EPA had judged a
36-month implementation period to be warranted. Moreover, as this is a
new program, albeit modeled on an existing program, EPA is prepared to
provide necessary compliance assistance as facilities develop plans for
the first time.
Although EPA understands that current practices at some covered
facilities may present challenges with meeting the 60-day window for
changes to FRPs, documenting and adjusting material changes must be
done swiftly to ensure that plans adequately prepare for worst case
discharges of CWA hazardous substances. Longer timelines could render
the FRP unusable as a response plan. Larger and more complex batch
processors, laboratories, and facilities require proactive planning for
the anticipated maximum quantities onsite. In addition, as detailed in
the proposal, these timelines are roughly based on OPA 90 transition
provisions, which directed EPA 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 FRPs beginning 30
months from enactment and were required to be submitted by 36 months of
enactment. For existing and new facilities, oil FRPs were to be
submitted within six months from the time of discovery or notification
that a facility could cause ``substantial harm.'' This timeline is
similar to that of the oil FRP program, where an oil FRP must be
resubmitted 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.
EPA has added Sec. 118.4(a)(6), whereby a covered facility owner
or operator must review and recertify their plan Agency every five
years. This will ensure that FRPs stay updated and that owners or
operators remain cognizant of their responsibilities under this
regulation. A five-year review period is common in EPA programs and the
Agency judges this to be a necessary component of an effective program.
EPA has added Sec. 118.4(a)(7), whereby a covered facility owner
or operator must evaluate their operations if EPA adds or removes a CWA
hazardous substance from the list at 40 CFR 116.4 or adjusts relevant
RQs as found in 40 CFR 117.3. Such additions, deletions, or adjustments
are done through a formal notice and comment rulemaking procedure, so
the regulated community will be on notice and have ample opportunity to
review such proceedings before they become final. If a covered facility
becomes newly subject to this regulation at that time, the owner or
operator has six months to submit a new or updated FRP to EPA.
[[Page 21942]]
4. Regional Administrator Determination of Substantial Harm and
Significant and Substantial Harm
In proposed Sec. 118.5, EPA detailed a process by which an RA may
require a covered facility to prepare a CWA hazardous substance FRP
after consideration of site-specific factors. EPA has added a provision
in Sec. 118.5(a) whereby the RA may require amendments to FRPs
submitted under their authority in Sec. 118.5. Additionally, the
Agency proposed factors for the RA to consider in Sec. 118.5(b), as
well as the factors in Sec. 118.3. Some commenters urged EPA to remove
the provision regarding the process for RAs to determine that a covered
facility could cause substantial harm to the environment and must
prepare, implement, and submit an FRP.
For the following reasons, EPA has decided to retain the language
largely as proposed in the final action. On the one hand, EPA
understands that Sec. 118.5 creates some uncertainty for owners and
operators. With respect to determining whether covered facilities could
cause substantial harm to the environment in the first instance, EPA
decided to implement a rule with two components (i.e., regulatory
criteria, including an initial screen followed by an analysis of
substantial harm criteria). The regulatory criteria are designed to
capture the bulk of those covered facilities that could reasonably be
expected to cause substantial harm to the environment. However, because
of the size and diversity of the types of covered facilities within the
regulated community, EPA believes that there are covered facilities
that will not meet the criteria in Sec. 118.3, but may, due to
facility-specific or location-specific circumstances, pose sufficient
risk to the environment to be designated as being able to cause
substantial harm to the environment. Accordingly, EPA has included the
ability of the RA to make a case-by-case determination. Although EPA
has made every effort to avoid being overly broad in terms of covered
facilities that must submit an FRP, EPA understands that there may be
circumstances where the regulatory criteria are overinclusive. In such
cases, an owner or operator may seek a determination by the RA that the
covered facility does not have the potential to cause substantial harm
to the environment despite meeting the regulatory criteria. The Agency
recognizes that RAs possess unique knowledge of Region-specific
considerations and EPA has authority under E.O. 12777 to designate
covered facilities on a case-by-case basis that could reasonably be
expected to cause substantial harm to the environment. That said, EPA
expects to exercise this authority judiciously and in manner that is
reserved to ensure adequate protection of the environment. This type of
process is not without precedent; indeed, the Oil Pollution Prevention
FRP regulation has a similar provision in 40 CFR 112.20.
Moreover, EPA agrees with commenters who stressed that communities
with environmental justice concerns may have unique circumstances that
are not captured in the published applicability criteria. To be
sensitive to these specific issues, of which RAs are uniquely
positioned to have knowledge, EPA maintains that considering these
concerns and circumstances is necessary to protect these communities.
Similarly, the impacts of climate change may be difficult to anticipate
and vary widely; thus, the Regional ability to assess facilities on a
case-by-case basis and, if appropriate, to require a facility to
develop a response plan is warranted in order to protect the
environment.
EPA has decided to augment Sec. 118.5(b)(2) to specifically
reference CWA hazardous substance characteristics, such as ignitability
and reactivity. Thus, RAs may take such considerations into account
when determining if a covered facility could cause substantial harm to
the environment in the event of a worst case discharge to navigable
waters. This addition is important in certain instances to account for
the wide variety of CWA hazardous substances and their physicochemical
properties, including CWA hazardous substances present in waste,
especially in combination with the other substantial harm factors in
Sec. 118.5(b), of which the RA is uniquely situated to be
knowledgeable. In addition, and with further consideration of public
comments, EPA has decided to add Sec. 118.5(b)(10), whereby an RA may
consider facility density and potential cumulative impacts of co-
located facilities in requiring a covered facility to prepare and
submit an FRP. EPA agrees with commenters concerned about cascading
effects of a worst case discharge and submits that the RA is best
positioned to evaluate this potential in the regulated community.
Some commenters also urged EPA to remove the provision regarding
the process by which RAs determine that a covered facility could cause
significant and substantial harm through a worst case discharge into or
on navigable waters or a conveyance to navigable waters. However, the
CWA directs the President to develop criteria to identify a subset of
substantial harm facilities that could reasonably be expected to cause
both significant and substantial harm to the environment. As such, EPA
proposed factors for the RA to consider when determining that a covered
facility could cause significant and substantial harm to the
environment in Sec. 118.5(d), along with the substantial harm criteria
found in Sec. Sec. 118.3(c) and 118.5(b). Also, in Sec. 118.5(d)(3),
EPA has expanded the factors an RA may consider when designating a
covered facility as a significant and substantial harm facility to
include the condition of containers or equipment onsite, as
deteriorating or poor quality containers or equipment could more
readily fail. In addition, EPA removed a duplicative provision
referring to plan reviews. Finally, an owner or operator may appeal an
RA's determination that their covered facility could cause significant
and substantial harm to the environment through a worst case discharge
using the process in Sec. 118.6.
To assist RAs in achieving nationwide consistency, EPA intends to
outline specific screening procedures for use by RAs and to foster
consistency in how the substantial harm and significant and substantial
harm factors are applied. RAs should consider the relationship of the
substantial harm and significant and substantial harm factors and not
consider one factor in isolation except under unique circumstances.
Although the RA may consider that one factor is sufficient to require
that a response plan be submitted, this would be done only under
limited circumstances where site-specific conditions warrant. EPA
believes that this will help to ensure a greater degree of uniformity
in Regional determinations of substantial harm and significant and
substantial harm.
RAs will provide a written basis for the determination of
substantial harm or significant and substantial harm, which will be
made available to the covered facility owner or operator. An owner or
operator may use the appeals provision in Sec. 118.6 to request
reconsideration and ultimately appeal to the Administrator that their
covered facility could cause substantial harm or significant and
substantial harm to the environment from a worst case discharge into or
on navigable waters or a conveyance to navigable waters.
5. Appeals
EPA proposed and is retaining in Sec. 118.6 a two-step appeals
process to allow covered facility owners or operators seek
reconsideration of the RA's determination of substantial harm or
significant and substantial harm or the disapproval of a CWA hazardous
[[Page 21943]]
substance FRP, and then, if warranted, to appeal that decision to the
EPA Administrator. The two-step appeals process is similar to one that
has been available in the Oil Pollution Prevention FRP regulation for
close to 30 years and is intended to provide owners or operators with
an avenue to present their data and information to EPA through a formal
process.
In the first stage, the owner or operator submits a request for
reconsideration, including supporting data and information, to the RA.
Then, the RA will evaluate the submitted information and data and
decide whether to approve the covered facility's appeal or adjust its
evaluation of the ability to cause substantial harm to the environment.
The RA will issue a written decision, including the basis for the
determination, as soon as practicable. Depending on the outcome, the
owner or operator either must submit a plan or amendments to a plan
following the timelines in Sec. 118.4 or is not required to submit a
plan or amendments. After the RA issues a determination, the owner or
operator may appeal the decision to the EPA Administrator within 60
days. If the EPA Administrator requires a plan or amendments to be
submitted to EPA, the owner or operator shall follow the timelines in
Sec. 118.4.
As per the OPA 90 amendments to the CWA, the intent of this
regulation is to shift the burden of planning and response to covered
facilities rather than public resources; thus, putting the onus on the
owner or operator to disprove the need for a plan is appropriate.
6. Petitions
EPA proposed and is retaining in this final rule a petition
provision in Sec. 118.7 whereby the public and other government
agencies may petition EPA to determine whether a CWA hazardous
substance covered facility should be required to submit an FRP to EPA.
Petitions are submitted to the RA, who in turn reviews the submissions
as soon as practicable. Petitions must include a reasonable basis for
asserting that the covered facility may pose a risk of substantial harm
to the environment. Specifically, a petition must include a discussion
of how the factors in Sec. 118.3 apply to the covered facility.
Although including quantitative or other data as to the substantial
harm criteria would be ideal, petitioners are not required to submit
such data. EPA will make the petition available to the owner or
operator that is the subject of the petition and provide an opportunity
to respond. RAs may render a decision based solely on the information
in the petition and in the response provided by the owner or operator
that is the subject of the petition, but may also gather additional
information before rendering a decision.
In terms of public availability, EPA does not believe that making
all petitions public would serve to protect human health and the
environment. Some materials may contain sensitive information or be
inaccurate; once a covered facility is subject to FRP requirements, EPA
will make public those parts of the FRP that can be shared as
determined in conjunction with Federal partners like the U.S.
Department of Homeland Security (DHS) and the Federal Bureau of
Investigation (FBI). EPA is also not adding a deadline for acting on
petitions, since they and covered facilities may be complex, and it is
important to allow ample time for review and to work with both
petitioners and owners or operators to address any concerns.
EPA disagrees with commenters who assert that petitions will lead
to the regulation being unevenly applied. It is not unusual for
Executive Agencies to have a process that develops and establishes
applicability norms over time. A few commenters suggested that the rule
should require petitioners to provide supporting evidence and allow
covered facility owners or operators an opportunity to respond before
an RA decides how the Agency will proceed in response to such a
petition. Other commenters expressed concern that the rule does not
provide procedures for covered facilities that are the subject of a
petition to test the claims made in the petition, to submit data or
information, or rebut the petition in other ways. In response to these
concerns, EPA has revised Sec. 118.7 to specify EPA will make the
petition available to the owner or operator of the covered facility in
question and provide an opportunity to respond. In addition, the RA
will work with the owner or operator to substantiate the petition, as
appropriate. The appeals and petitions provisions are complementary:
one the one hand, the petition provision allows for stakeholder
participation in whether EPA determines if a covered facility poses a
risk of substantial harm to the environment through a worst case
discharge into or on navigable waters or a conveyance to navigable
waters and must prepare an FRP. On the other hand, the appeals
provision allows covered facilities that may meet the criteria but
could not reasonably be expected to cause substantial harm to the
environment from a worst case discharge into or on navigable waters or
a conveyance to navigable waters to appeal to the RA that the owner or
operator is not required to submit an FRP, or otherwise engage with EPA
on determinations.
While commenters expressed concern that the petition process is
based on subjective opinion and lacks evidence-based standards for
determining covered facility applicability, EPA will still determine
covered facility status based on the regulatory criteria in Sec. Sec.
118.3 and 118.5. EPA clarifies here that it is not necessary for
petitioners to provide detailed analyses and calculation as to whether
the covered facility meets one of the specific criteria in Sec. 118.3
but rather must provide a reasonable basis for asserting that the
covered facility may pose a risk of substantial harm to the
environment. For example, if a covered facility is located near a
wildlife sanctuary and appears to store significant quantities of a CWA
hazardous substance, then the petition need only include such
observations. That said, a petition that fails to provide a basis for
why a covered facility should be determined to reasonably be expected
to cause substantial harm to the environment from a worst case
discharge into or on navigable waters or a conveyance to navigable
waters (e.g., the covered facility is near a drinking water supply or a
priority sensitive environment listed in an ACP, or has a history of
frequent discharges to water or poor maintenance, etc.) may not receive
immediate action by the RA or may be summarily denied. The purpose of
the requirement to provide some basic information based on knowledge of
EPA's criteria is to help screen out frivolous, unfounded petitions.
The RA will use his or her discretion in following up on petitions that
do not include a reasonable basis to believe a covered facility could
cause substantial harm to the environment from a worst case discharge
into or on navigable waters or a conveyance to navigable waters.
To commenters concerned that communities at risk of a CWA hazardous
substance discharge would be dependent on petitions in order to protect
themselves, EPA maintains that the applicability criteria in Sec.
118.3 appropriately target the bulk of covered facilities that could
cause substantial harm to the environment from a worst case discharge
into or on navigable waters or a conveyance to navigable waters.
Rather, for the subset of covered facilities that may not be captured
using that mechanism, the public may submit a petition asking EPA to
pursue the matter. The RA then follows the processes in Sec. Sec.
118.3 and 118.5 to
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determine whether a covered facility could cause substantial harm to
the environment.
One commenter requested that EPA authorize State Emergency Response
Commissions (SERCs) to make covered facility designations--due to their
greater local capacity to address environmental justice, responder and
public safety--unless the RA disagrees. EPA disagrees that SERCs should
be authorized to make covered facility designations, as this is EPA's
authority. The SERC may use the petition process to work with the RA in
determining whether a covered facility could cause substantial harm to
the environment through a worst case discharge into or on navigable
waters or a conveyance to navigable waters.
Finally, EPA disagrees that the petitions process is unprecedented
and expansive; the petitions process is similar to one that has been
available in the Oil Pollution Prevention FRP regulation for close to
30 years and is intended to provide stakeholders and the public with an
avenue to participate in the FRP determination process with EPA through
a formal process.
7. Exceptions and Exemptions
EPA proposed and is retaining in Sec. 118.8 certain exceptions and
exemptions to this regulation, but with some adjustments and
clarifications. Several commenters expressed concern about areas where
they thought the rule overlapped with other regulations or programs.
Below is a brief summary of the regulations commenters most commonly
cited as overlapping:
--The RMP regulation under the CAA's authority is for air releases; for
that reason alone, it is insufficient to rely upon to determine whether
a covered facility could cause substantial harm to the environment by
discharging into or on navigable waters (40 CFR part 68).
--The Oil Pollution Prevention Program FRP regulation is comprehensive
for oils but does not regulate CWA hazardous substances (40 CFR 112.20
and 112.21, Appendices C-F). Similarly, the Oil Pollution Prevention
Spill Prevention, Control, and Countermeasure (SPCC) program regulates
oils, specifically the prevention of oil spills (40 CFR part 112).
--Occupational Safety and Health Administration's (OSHA) Process Safety
Management (PSM) standard sets requirements for preventing or
minimizing the consequences of catastrophic releases of toxic,
reactive, flammable, or explosive chemicals in order to protect
workers. The provisions of the PSM standard were written to assure safe
and healthful working conditions for employees, not to protect the
environment from discharges of CWA hazardous substances. (29 CFR
1910.119).
--The CWA NPDES Permit Program, authorized by the CWA, controls water
pollution by regulating point sources that discharge pollutants into
waters of the United States. An NPDES permit establishes limits on what
can be discharged, monitoring and reporting requirements, and other
provisions to protect water quality. In essence, the permit translates
general requirements of the CWA into specific provisions tailored to
the operations of the facility discharging pollutants. A NPDES general
permit may be written to establish requirements that apply to eligible
facilities with similar operations and types of discharges that obtain
authorization to discharge under the general permit. It does not
require response planning and permitted discharges are not regulated
under this final rule (40 CFR part 122).
--Bureau of Alcohol, Tobacco, Firearms and Explosives ammonium nitrate-
fuel oil (ANFO) requirements apply to ANFO, which is not a CWA
hazardous substance (27 CFR part 555).
--USDOT regulations for product and waste shipping apply to items in
transportation, while this proposal applies explicitly to onshore non-
transportation-related facilities (49 CFR parts 171-185).
--DHS regulations do not require planning for worst case discharges of
CWA hazardous substance into or on the navigable waters or a conveyance
to navigable waters; rather, they identify and regulate high-risk
facilities to ensure security measures are in place to reduce the risk
that certain dangerous chemicals are weaponized by terrorists (6 CFR
part 27).
--The Emergency Planning and Community Right-to-Know Act (EPCRA)
Reporting Rule is a reporting rule and does not require worst case
discharge planning (40 CFR part 370).
EPA refers commenters to the TBD, available in the docket, for more
information on how the program elements in existing Federal programs do
or do not align with the requirements in CWA Sec. 311(j)(5).
After examining the RCRA regulations and commenter concerns, EPA is
adding an exemption at Sec. 118.8(b)(2)(viii) for the storage and
accumulation of hazardous waste subject to the Standards for Owners and
Operators of Hazardous Waste Treatment, Storage, and Disposal
Facilities (TSDF), 40 CFR part 264 and 40 CFR part 265 and Standards
Applicable to Generators of Hazardous Waste, 40 CFR part 262, subpart
M. For covered facilities subject to the TSDF requirements under 40 CFR
parts 264 and 265, these regulations comprehensively address the
program elements required under CWA section 311(j)(5)(D). For hazardous
waste generators covered under 40 CFR part 262, EPA is exempting those
generators subject to subpart M (i.e., large quantity generators) for
the same reason; the contingency plan and emergency procedures
requirements therein comprehensively address the program elements
required under CWA section 311(j)(5)(D). While small quantity
generators have preparedness and prevention requirements, these do not
cover all required program elements under CWA section 311(j)(5)(D), and
very small quantity generators are not subject to prevention and
preparedness requirements nor required to develop a contingency plan
and emergency procedures. Since hazardous waste at these generators may
contain CWA hazardous substances and are not subject to all RCRA
hazardous waste requirements, EPA has decided that hazardous waste
generators not subject to RCRA part 262, subpart M requirements must
follow the applicability criteria at Sec. 118.3 to determine if they
could cause substantial harm to the environment through a worst case
discharge into or on navigable waters or a conveyance to navigable
waters. Solid, non-hazardous waste is also subject to this final rule.
Additionally, EPA excepts tanks already regulated under the
underground storage tank (UST) program at 40 CFR part 280 at 40 CFR
118.8(a)(4). EPA is not regulating substances present as oil and that
may be part of an oil mixture, such as gasoline, at covered facilities
in this action since those are regulated under 40 CFR 112.20.
In terms of adjustments and clarifications, the Agency clarifies
that permitted discharges are not included in the Sec. 118.3
applicability determinations, nor the Sec. 118.11 FRP requirements.
Also, EPA is adding an exemption under Sec. 118.8(b)(2)(v) for
wastewater whereby a POTW does not need include CWA hazardous
substances present in wastewater entering their collection system prior
to treatment under a NPDES permit in their threshold quantity
determinations. The Agency, however, notes the pretreatment program
oversight requirements in 40
[[Page 21945]]
CFR 403.8(f) for any industrial users that may be subject to this rule,
and recommends control authorities evaluate whether program elements
such as slug control plans or local limits expressed as best management
practices should be issued or revised in coordination with the
requirements of this rule.
Additionally, EPA clarifies here that the exemption under Sec.
118.8(b)(2)(iv) for use of process water or cooling water is specific
to amounts of a CWA hazardous substance present in water drawn into a
covered facility from the environment or municipal sources. For
example, chlorine present in water taken from municipal sources does
not have to be considered for threshold determination. This is
consistent with the approach taken by other chemical regulations,
including Toxics Release Inventory (TRI) and RMP, and DHS's Chemical
Facility Anti-Terrorism Standards (CFATS) program and reflects the low
level of risk of such waters.
Finally, this regulation applies to only the non-transportation-
related portion of MTR facilities that are subject to both EPA and USCG
jurisdiction, as per Sec. 118.8. As such, the non-transportation-
related portion of the facility is generally defined as the valve
manifold adjacent to the tank nearest the connection to the
transportation-related portion of the facility (i.e., the structure
used or intended to be used to transfer CWA hazardous substances to or
from a vessel or pipeline). The interface may be defined differently at
a specific facility if agreed to by the RA and the appropriate Federal
official.
8. Mixtures
In Sec. 118.9, EPA proposed and is retaining in this final action
a mixture provision for determining the CWA hazardous substance maximum
quantity onsite at the covered facility of CWA hazardous substance(s),
under Sec. 118.3(a) and mixture worst case discharge quantities under
Sec. 118.10. This provision is based on CERCLA Notification
Requirements, found in CERCLA section 103(a) (40 CFR 302.6). EPA agrees
with a commenter that noted the chosen approach mirrors existing
regulations on how to treat mixtures of CWA hazardous substances under
the CWA and CERCLA. Regulated facilities are familiar with the mixture
rule and how to apply it.
EPA disagrees with commenters who argued that requiring the use of
the lowest RQ when the exact mixture composition is unknown is overly
conservative, unrealistic, and does not reflect the actual risk of
harm. If there are known and unknown substance constituent quantities,
the covered facility owner or operator must only apply the lowest RQ to
the unknown portion of the mixture, not the entire quantity. This
approach is properly conservative and reflective of risk. If a covered
facility owner or operator can provide evidence that the mixture
composition does not meet the lowest RQ, they may use the appeals
provision in Sec. 118.6 to adjust their maximum quantity onsite or
worst case discharge scenario quantity, or for reconsideration of their
status.
A few examples illustrate how the mixture rule is applied when
evaluating whether the quantity of CWA hazardous substances onsite is
greater than or equal to their respective RQs. The first example
provides a case where a covered facility has a mixture where all
components are known. The covered facility has 5,000 pounds of a
cleaning solution containing 45-55% water, 1-10% chromic acid, 1-10%
sodium sulfate, and 25-35% sulfuric acid onsite. Chromic acid (CAS
7738-94-5) and sulfuric acid (CAS 7664-93-9) are CWA hazardous
substances with RQs of 10 and 1,000 pounds, respectively. The owner or
operator assumes the highest percentage of each CWA hazardous substance
in the range, performing mixture calculations based on 10% chromic acid
and 35% sulfuric acid. Based on the total quantity of the cleaning
solution at the covered facility, there are 500 pounds of chromic acid
and 1,750 pounds of sulfuric acid onsite. The threshold quantity for
chromic acid is 10,000 pounds, while the threshold quantity for
sulfuric acid is 100,000 pounds. The quantities of chromic acid and
sulfuric acid onsite are below the threshold quantity.
A second example demonstrates threshold calculations when the
composition of a mixture is not known. A large manufacturing covered
facility produces chromated copper arsenate as a wood preservative for
specialized timber applications. The covered facility regularly
generates production waste, which is stored in a container. The
container has 1,000 pounds of a waste of unknown composition, but which
has been determined to be non-hazardous under RCRA and contains water,
copper oxide, arsenic pentoxide, and chromic acid. Arsenic pentoxide
(CAS 1303-28-2) and chromic acid (CAS 7738-94-5) are CWA hazardous
substances with RQs of 1 and 10 pounds, respectively. The covered
facility has 50 pounds of arsenic pentoxide and 75 pounds of chromic
acid onsite as reactants. Because the composition of the waste is
unknown, the owner or operator must assume that the entire mixture is
composed of the lowest RQ substance, in this case arsenic pentoxide.
Based on the total mass of the waste, the owner or operator calculates
that they have 1,000 pounds of arsenic pentoxide from the waste
mixture, and 50 pounds of arsenic pentoxide as a reactant (but which is
not a commercial chemical product), with a total mass of 1,050 pounds
of arsenic pentoxide. The threshold quantity for arsenic pentoxide is
1,000 pounds. The quantity of arsenic pentoxide onsite is above the
threshold quantity.
A final example demonstrates a case when part of a waste mixture
containing CWA hazardous substances is known and part is unknown. A
small, covered facility uses hydrochloric acid and nitric acid as part
of its manufacturing process. The spent acid is collected in a large
vessel containing 100,000 pounds of a mixture with a pH of 3 composed
of 25% water by weight and an unknown percentage of hydrochloric acid,
nitric acid, and several other unknown chemical substances.
Hydrochloric acid (CAS 7647-01-0) and nitric acid (CAS 7697-37-2) are
CWA hazardous substances with RQs of 5,000 and 1,000, respectively. The
covered facility has 1,000 pounds of hydrochloric acid and 5,000 pounds
of nitric acid onsite. Because 25% of the waste mixture is of known
composition, the owner or operator only needs to assume the remaining
75% of the mixture is the CWA hazardous substance with the lowest RQ.
Because nitric acid has the lowest RQ, the owner operator calculates
that they have 75,000 pounds of nitric acid in the waste mixture, with
80,000 total pounds of nitric acid onsite. The threshold quantity for
nitric acid is 1,000,000 pounds. The quantity of nitric acid onsite is
below the threshold quantity.
Note that CWA hazardous substance maximum quantities onsite are
calculated by CWA hazardous substance. They should not be aggregated,
even if they have the same RQ.
9. Worst Case Discharge Calculations
As discussed earlier, EPA is adjusting the worst case discharge
calculations in Sec. 118.10. The CWA, as amended by the OPA, defines
the worst case discharge for a facility as ``the largest foreseeable
discharge in adverse weather conditions.'' As detailed above, adverse
weather conditions include those due to climate change, which may
consist of challenging climatic conditions such as those that would
maximize the peak concentration of the discharged substance in the
receiving waterbody. The OPA Conference Report goes on to
[[Page 21946]]
state that the largest foreseeable spill from a given type of facility
is intended to describe a case that is worse than either the largest
spill to date or the maximum most probable spill for that type of
facility (see H.R. Rep. No. 101-653, l0lst Cong., 2d Sess. 1990 at pp.
149-150.), which is unlikely to be the entire capacity or quantity
stored at a facility in a single event.
Again, EPA has adjusted its approach to worst case discharge
scenario quantity to use the maximum quantity of a single container for
substances stored in separate containers or the maximum quantity of a
group of interconnected containers, rather than capacity. Facility
circumstances and methods of storage vary widely, and owners or
operators should know their inventories and largest containers.
Additionally, this simplifies procedures for facilities accounting for
mixtures. EPA has further adjusted its approach to require worst case
discharge scenarios for all CWA hazardous substances onsite above the
threshold quantity once a covered facility is subject to this
regulation. This will satisfy the statutory requirement to plan for CWA
hazardous substance worst case discharges and address the concerns of
commenters around which substance to use in worst case discharge
scenarios. The Agency has also revised language to clarify that covered
facility owners or operators must compare the distance to the endpoints
provided in Appendix B against their calculated CWA hazardous substance
planning distance to determine if the covered facility could cause
substantial harm to FWSE or public receptors from a worst case
discharge into or on navigable waters or a conveyance to navigable
waters and also in their hazard evaluation once a covered facility is
subject to the regulation. EPA has further adjusted the properties of
the CWA hazardous substance to be evaluated to reflect those properties
as they relate to a discharge to navigable waters. Additionally, an
owner or operator must provide evidence in their Appendix A:
Substantial Harm Certification Form that containers with common piping
or piping systems are not operated as one unit. Finally, EPA has added
pH and alkalinity under the conditions of the receiving water to better
characterize a worst case discharge in Sec. 118.10(b)(ii)(E).
While a few commenters were concerned about piping and measuring
the contents of piping systems, EPA maintains that, in general, if a
covered facility owner or operator has two or more containers that
contain a CWA hazardous substance and are connected through piping or
hoses to transfer the CWA hazardous substance, the owner or operator
must consider the total quantity of the CWA hazardous substance in all
the connected containers and piping when determining the maximum worst
case discharge scenario quantity. If the containers are connected for
transfer of the CWA hazardous substance using hoses that are sometimes
disconnected, the owner or operator still must consider the contents of
the containers as one process, because if one container were to rupture
while a hose was attached or a hose were to break during the transfer,
both containers could be affected. Again, the statute directs EPA to
address the worst case discharge scenarios--even in situations where
the conditions are not static, i.e., sometimes containers are connected
but not always. Therefore, the owner or operator must count the
quantities in both containers and in any connecting piping or hoses.
Similarly, the presence of automatic shutoff valves or other devices
that can limit flow do not change the analysis because these are
assumed to fail for the purpose of determining the worst case discharge
scenario quantity. This is consistent with and required under other
regulations, such as onshore oil pipelines regulated by the USDOT
Pipeline and Hazardous Materials Safety Administration.
EPA agrees with commenters who noted that there are chemicals in
the CWA hazardous substance list at 40 CFR 116.4 that may be in either
a solid or gaseous form upon release and may be physically unable to
reach navigable waters or a conveyance to navigable waters.
Specifically, facility circumstances and methods of storage vary
widely, so the covered facility owner or operator must use their best
professional judgment based on the physicochemical properties and
characteristics of the substance at issue and best available
information and practice in determining if a worst case discharge or a
CWA hazardous substance that releases as a gas or solid could, in
adverse weather conditions, reach navigable waters or a conveyance to
navigable waters, cause injury to a public receptor or FWSE, or
adversely impact a PWS. This may mean that for a substance released as
a gas in adverse weather conditions and without consideration of
passive mitigation, secondary containment, or administrative controls,
the distance to endpoints cannot be calculated. Solid CWA hazardous
substances may be miscible in water and, as such, a planning distance
may be calculated. Thus, if a solid stored as a powder or in pellets
has the ability to release in a flood scenario and reach navigable
waters or a conveyance to navigable waters, the covered facility owner
or operator must make a substantial harm determination, and if
determined to be able to cause substantial harm to the environment from
a worst case discharge of a CWA hazardous substance into or on
navigable waters or a conveyance to navigable waters, submit an FRP to
EPA. However, EPA stresses that adverse weather conditions, including
extreme events due to climate change, must be considered. As such, if a
solid stored as a powder or in pellets could release in a high-
intensity rainfall event or flood scenario and navigable waters or a
conveyance to navigable waters, the covered facility must make a
substantial harm determination. Similarly, should a worst case
discharge consist of a CWA hazardous substance releasing as a gas that
could mix with rainwater and then reach navigable waters or a
conveyance to navigable waters, the covered facility owner or operator
would need to examine that outcome in their worst case discharge
scenario(s). Relatedly, EPA is not choosing to set a temperature range
or define the form of the substance as it releases; instead, the
covered facility owner or operator should make a similar determination
as described above. The Agency recognizes commenter concern over
covered facilities with a variable inventory of CWA hazardous
substances. Owners or operators of these covered facilities will need
to plan for the maximum quantity in a single container or
interconnected containers of a CWA hazardous substance onsite at any
one time and forecast when such occasions may occur. Due to the
potentially catastrophic effects of a worst case discharge, the Agency
does not see these requirements as overly burdensome. EPA notes that
plans can and should be updated if, for example, there is an unexpected
increase in demand such that the worst case discharge scenario quantity
is outside of anticipated fluctuations and necessitates different or
more response resources, requiring an amendment to the FRP as in Sec.
118.4(b).
While some commenters asked for clarification on the timing of a
discharge, EPA maintains that a worst case discharge may occur
instantaneously or over time, and a covered facility owner or operator
is best situated to determine the appropriate timing scenario based
onsite-specific considerations and the
[[Page 21947]]
physicochemical properties of the CWA hazardous substances in question.
The timing used for the worst case discharge scenario should reflect
reasonable conditions that have the greatest potential to cause
substantial harm. One commenter suggested that calculations should be
based on the dollar amount of potential damage. EPA is not following
this approach as such calculations would be very difficult to assess
and could fluctuate over time dependent on inflation and the costs of
equipment, materials, labor, etc.
The Agency is aware that CWA hazardous substance planning distance
modeling is a critical component of successful implementation of this
regulation and is engaged with its research arm to identify additional
data and resources to aid the regulated community in compliance. That
said, EPA disagrees with commenter concerns that having covered
facilities exercise their professional judgment and applying best
modeling practices creates opportunities for inconsistency, as it
provides flexibility and allows for those most familiar with the
substance, facility, and site conditions to examine the event of a
worst case discharge and its potential effects.
For commenters concerned with public availability of the models
used, Sec. 118.10 as proposed and finalized in this action requires
covered facility owners or operators to provide EPA access to models,
submit documentation substantiating the methodology, and describe the
features to local emergency planners. EPA will work with other Federal
partners to determine the feasibility and safety of providing such
information to the public.
For the commenter who suggested requiring use of the Chezy Manning
equation as in the Oil Pollution Prevention FRP regulation (40 CFR part
112, Appendix C), this approach may be applicable to some oil-like CWA
hazardous substances. However, it is not generally applicable to the
myriad characteristics and effects of the 296 hazardous substances
listed in 40 CFR 116.4. So, while they may be useful tools, dictating
or limiting the analysis to those methods alone would not be adequate
for calculating planning distances for all CWA hazardous substances,
though they may be used for oil-like CWA hazardous substances as
appropriate.
10. Facility Response Plan Requirements
EPA proposed and is finalizing with adjustments the FRP
requirements in Sec. 118.11. One major objective of the OPA 90
amendments to section 311(j)(5) of the CWA was to shift the burden of
response from public to private resources. 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) of the CWA 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. The Agency clarifies here that covered facility
owner or operators who meet the screening and one or more of the
substantial harm criteria must prepare and submit an FRP to EPA that
plans for all CWA hazardous substances onsite above the threshold
quantity but not CWA hazardous substances onsite below the threshold
quantity.
The requirements in Sec. 118.11 are designed to address concerns
specific to CWA hazardous substances; as such they do not mirror
exactly the requirements under the Oil Pollution Prevention FRP
regulation. A written plan that complies with other Federal contingency
plan regulations or is consistent with the approach in the National
Response Team's ICP Guidance (``One Plan'') and that includes the
elements required will satisfy the requirements of this final rule.
Facilities may augment an existing response plan with requirements that
are specific to this action.
The Agency is aware that planning for any number of the 296
possible CWA hazardous substances with disparate characteristics and
impacts may be involved. That is one reason EPA has implemented an
initial screen with relatively bright line criteria to that will
identify covered facilities that do not need to engage in further
analysis.
In this final action, once a covered facility determines it meets
one of the substantial harm criteria, the owner or operator must plan
for all CWA hazardous substance onsite above the threshold quantity.
EPA has adjusted its approach from the proposed rule, where one CWA
hazardous substance worst case discharge scenario provided the basis
for the FRP. This change is consistent with EPA's statutory authority
under this action to require plans for covered facilities that, because
of their location, could cause substantial harm to the environment from
a worst case discharge into or on the navigable waters. It also
recognizes that response and/or recovery actions may vary widely
depending on the physicochemical properties of the substance, so one
CWA hazardous substance at facilities with multiple CWA hazardous
substances that meet or exceed the threshold quantity cannot adequately
inform that facility's FRP.
i. Consistency With National Contingency Plan and Area Contingency
Plans
Despite supporting the overall proposed rule, one commenter
requested EPA add a provision to Sec. 118.11(a)(1) to provide a way to
evaluate facility owner or operator compliance with the requirement to
ensure consistency with the NCP and ACPs. This seems like a commonsense
suggestion that should not impose any additional burden on facilities
and will allow the Agency and other reviewers to confirm compliance and
cross check relevant plans. Accordingly, EPA has added Sec.
118.11(a)(1)(ii), requiring a signed affirmation of review of relevant
plans and Sec. 118.11(a)(1)(iii), requiring a list of area and sub-
area plans reviewed.
Additionally, EPA has augmented this provision to require
consistency with Regional Contingency Plans (RCPs) as per 40 CFR
300.210. This is appropriate and consistent with the requirements of
the CWA since RCPs form a fundamental component of the NCP.
ii. Qualified Individual
Several commenters stated that the requirements for a QI are
extremely difficult to meet and impractical, while placing all these
responsibilities on one individual is inconsistent with most
facilities' operational structures. On the one hand, EPA understands
that this is a new program and these requirements may be foreign
compared to how owners or operators currently do business. On the other
hand, such requirements have been in operation for close to 30 years in
the Oil Pollution Prevention FRP regulation, so there is precedent and
a successful model for this approach. Accordingly, EPA is keeping in
place the requirements for a QI. However, in response to the concerns
raised in the comments, EPA is clarifying that a documented management
system that can perform the stated functions may take the place of a
single individual. For example, as in the Oil Pollution Prevention FRP
regulation, duties may be spread across corporate departments and
consist of a regional QI structure, corporate call center, and
corporate media relations department.
As stated in the OPA conference report (H.R. Rep. No. 101-653,
101st Cong., 2d Sess. 1990), a main objective of this statutory mandate
is to shift the burden of response from public to private resources. A
sufficiently trained QI can be a valuable member of the incident
response team who has
[[Page 21948]]
intimate knowledge of the facility and its operations, allowing the QI
to make better and informed decisions for the facility if the plan
needs to be put into action as well as how the facility response fits
into the larger community response. Assuming public responders will
take on this role is inappropriate to this action.
In Sec. 118.11(a)(2)(xii), EPA is requiring QIs to acquire and
maintain incident commander training requirements consistent with 29
CFR 1910.120(q)(6)(v). Commenters asserted that this is inappropriate
because OSHA's Hazardous Waste Operations and Emergency Response
(HAZWOPER) standard at 29 CFR 1910.120 is for uncontrolled releases,
which could be mitigated by passive mitigation and thus be controlled.
EPA maintains that a worst case discharge into or on navigable waters
or a conveyance to navigable waters that causes substantial harm to the
environment is, by definition, an uncontrolled release and is not
allowing for consideration of passive mitigation in this final action.
EPA maintains that proper facility personnel training is critical to an
effective response program.
iii. Emergency Response Information
EPA has endeavored to provide a framework in Sec. 118.11(b) that
is consistent with the Oil Pollution Prevention FRP regulation in 40
CFR 112.20 while maintaining the flexibility needed to address the
specific planning needs for 296 disparate CWA hazardous substances.
Facility Information
EPA agrees with a commenter suggestion to add EPA identification
numbers to make it easier for EPA, response officials, and stakeholders
to cross-reference other relevant information about the facility
related to discharge response and preparedness. As such, the Agency has
added ``EPA identification numbers'' as a data element to report so
facility owner or operators can report various EPA ID numbers they may
use, such as TRI IDs, Facility Registry Service (FRS) numbers, etc.
This will aid in cross referencing submissions across programs.
Additionally, to provide consistency with the Oil Pollution
Prevention FRP regulation, EPA is adding that a facility owner or
operator must indicate whether their facility is located in or drains
into a wellhead protection area as defined by the SDWA. This
information will aid responders in determining whether further
assessment of impacts to those areas is warranted.
Owner or Operator Information
The Agency maintains that information on the facility owner or
operator is sufficient; both are not needed. EPA is not requiring
notification of related facilities nearby and disagrees with a
commenter who suggested that listing all facilities within a three-mile
radius that are under common ownership would enhance response planning
efforts. Related information should be included in the hazard
evaluation, where a facility owner or operator would identify nearby
businesses that could be affected by a worst case discharge.
Hazard Evaluation
The Agency is aware of the complexity and cost of modelling
endpoints for all CWA hazardous substances above the threshold,
examining communities with environmental justice concerns, and
considering climate change impacts in hazard evaluations. EPA intends
to provide tools and compliance assistance to help the regulated
community comply with these requirements and maintains that their
inclusion is critical to protect the environment in the event of a
worst case discharge. The hazard evaluation will additionally serve to
inform equipment selection (i.e., based on physicochemical
characteristics of the CWA hazardous substance as floater, sinker, or
soluble in water) and response actions to be taken, since those will
all depend on what risks are identified and characterized, the
necessary control methods, and communications required. Additionally,
EPA has added a requirement that, when identifying risks, facility
owners or operators must assess the age of CWA hazardous substance
containers, since older containers may be more susceptible to failure.
Facility owners or operators must also identify taste or odor
thresholds in water in their assessment of the ability to adversely
impact a PWS in order to more fully inform the relevant PWS of the
risks.
For the commenters concerned about assessing cascading failures,
EPA does not have access to facility-specific risk information and is
not taking on that responsibility for this evaluation, nor is it
requiring facilities to assess these impacts across facilities.
However, the risks associated with facility density is a factor the RA
may consider in Sec. 118.5(b)(10) when determining if a facility could
cause substantial harm to the environment through a worst case
discharge into or on navigable waters or a conveyance to navigable
waters. That said, it is incumbent upon the facility owner or operator
to identify nearby schools, businesses, places of worship, or other
areas that could be impacted by a worst case discharge.
In addition, the hazard evaluation must examine the effects of CWA
hazardous substance worst case discharges on communities with
environmental justice concerns as well as the effects of climate
change, including those that result in low flow conditions in receiving
water bodies, on the likelihood, duration, and impacts of a CWA
hazardous substance worst case discharge into or on navigable waters or
a conveyance to navigable waters. EPA is not specifying specific
climatological data or scenarios in regulation in order to be flexible
and in recognition that climate change impacts are occurring in
unexpected ways. Indeed, climate change considerations may include the
increased frequency and intensity of extreme weather events,
temperature fluctuations, rising seas, storm surges, inland and coastal
flooding, drought, wildfires, and permafrost melt in northern areas.
Instead, the Agency will continue to provide compliance assistance for
assessing both climate change impacts and effects on communities with
environmental concerns.
Reportable Discharge History
EPA maintains that reportable discharge history is not only
relevant but also an appropriate substantial harm criterion; this
information is critical to scenario development, including lessons
learned from past CWA hazardous substance discharges and response
efforts. In terms of a timeline for reporting, EPA is following the
lead of the Oil Pollution Prevention FRP regulation and requiring this
information to be retained for the life of the facility. EPA notes that
permitted discharges under NPDES and reportable discharges under 40 CFR
part 112 are covered under those regulations. EPA is not requiring
information on non-CWA hazardous substance discharges, since it is
unclear at best how relevant they are or would be to worst case
discharges of CWA hazardous substances. Similarly, EPA is only
including reportable discharges that reach navigable waters, since
other discharges are outside the scope of this action.
Another commenter suggested that that any discharge above a RQ is
already required to be reported under the CWA or the ancillary State
program, so it should be sufficient for the CWA hazardous substance FRP
to simply reference the notification submitted to EPA or the State. EPA
disagrees that this
[[Page 21949]]
is an adequate substitute for purposes of using the information as a
planning tool.
Response Personnel and Equipment
Pursuant to Sec. 118.11(b)(5), facility owners or operators must
provide the identity and a description of response personnel and
equipment and response action implementation necessary to respond to a
discharge of a CWA hazardous substance. The Agency clarifies that a
management system that clearly outlines the spill response roles will
be sufficient for this requirement, as long as it is properly
documented.
Contracts
EPA has revised the contracts requirement to explicitly require
response resources with firefighting capability. Adding this
clarification will aid facility owners or operators in their
preparations for a worst case discharge due to fire or explosion, as
per the statutory requirement. This is also consistent with the Oil
Pollution Prevention FRP regulation at 40 CFR part 112, Appendix E,
section 7.4. If a facility does not have adequate resources onsite and
it is unable to rely on locally available resources with firefighting
capabilities, the facility owner or operator must identify such
resources and ensure they are available by contract or other approved
means as per Sec. 118.2. The plan must also identify an individual,
who could be the QI, at the facility to work with the local fire
department during a response and verify that sufficient well-trained
resources are available within a reasonable response time to respond to
a worst case discharge.
EPA recognizes that, in many cases, contracting resources will need
to be identified to fill the role of SROs. Most large Oil Spill Removal
Organizations already have the capability to respond to hazardous
material incidents, particularly if they have been contracted by truck
and rail carriers. EPA expects that the potential increase in demand
for SROs caused by the rule will result in greater competition and
increased market entry by new contractors. Additionally, in Sec.
118.4, EPA is providing a 36-month implementation period before
facility owner or operators must submit plans. Finally, EPA will work
with USCG to identify SROs that can fulfill this role.
Notification Lists
EPA received a variety of suggestions of possible interested
parties who could potentially be contacted in the event of a discharge.
EPA is not expanding the scope of the notification list, since Federal,
Tribal, State, and local responders, as well as the non-specific
listing of potential receptors or interested parties is inclusive of
all of these suggestions. The Agency did, however, remove the
requirement to notify the Federal On-Scene Coordinator (OSC) and/or
Regional Response Center, since this notification will be handled by
the NRC. Federal, State, and local responders will be best positioned
to determine whether additional types of notifications are necessary
and will be most knowledgeable about the language needs of their local
community. Additionally, local responders will be aware of special
populations, e.g., hospitals, long-term care homes, assisted living
facilities, etc., that may have specific concerned and needs in an
emergency situation.
EPA can expect facilities to ensure that a community notification
system is available because FEMA has established the Integrated Public
Alert & Warning System (IPAWS) for community notification. This system
provides authenticated emergency and life-saving information to the
public through mobile phones using wireless emergency alerts. It also
provides alerts to radio and television via the Emergency Alert System
and on NOAA's Weather Radio. The Emergency Alert System devices found
at radio, TV and cable stations can support multiple languages and
wireless Emergency Alerts can support both English and Spanish. EPA has
judged that the presence of State and/or local IPAWS alerting
authorities--with the designated authority to alert and warn the public
when there is an impending natural or human-made disaster, threat, or
dangerous or missing person--in all 50 States provides the necessary
infrastructure for facilities to ensure that a community notification
system is operational in the event of a worst case discharge of a CWA
hazardous substance with the potential to impact the public. The most
applicable alerts through this system would be the imminent threat and
public safety alerts. Imminent threat alerts include natural or human-
made disasters, extreme weather, active shooters, and other threatening
emergencies that are current or emerging. Public safety alerts contain
information about a threat that may not be imminent, or about an
imminent threat that has occurred.
EPA disagrees with commenters who argued that ``preferred
communication'' should be removed, since telephone call is not the only
method of notification. The reason telephone communication has been
historically preferred is because the ``sender'' knows that they have
gotten through, or just as importantly, that they have not gotten
through and need to continue trying. That said, as long as receipt of
the communication is confirmed, notification can take any number of
electronic forms, including text or email.
Discharge Information
EPA clarifies that there is an expectation that a facility will
provide response officials with material updates to discharge
information as the facility learns more about the scope and nature of
the discharge as it becomes available to aid response efforts.
Personnel Roles and Responsibilities
In response to the concerns raised in the comments, the Agency is
clarifying that a documented management system that can perform the
stated functions may take the place of a specific individual.
Response Equipment Information
In order to avoid unnecessary confusion or redundancy, EPA notes
that CWA hazardous substance FRPs may reference lists in other plans as
long as they meet the requirements of Sec. 118.11. For example, oil
FRP plan holders could reference their existing response equipment and
update the narrative to meet the CWA hazardous substance FRP
requirements in an ICP.
EPA disagrees with a commenter who asserted that monitoring and
sampling equipment should be specified as ``can be made available.''
Since time will always be of the essence in responding to a worst case
discharge, these items are an important component of CWA hazardous
substance response and should be actually available rather than
possibly available. Additionally, plan holders should refer to their
ACP, which contains equipment and response resource requirements in
some areas. Finally, determining the type, quantity, etc. of response
resources may vary widely given the range of facilities and chemicals
at issue, which is one reason EPA has decided that facility owners and
operators should have the latitude to make these types of
determinations.
Evacuation Plans
One commenter suggested that the final rule explicitly require FRPs
to identify the community evacuation plan(s) with which they
coordinated and how that coordination with the surrounding community
was conducted. EPA agrees with the commenter that this is an important
aspect of response planning for a worst case discharge and has adjusted
its approach to require FRPs to identify and list the community
[[Page 21950]]
evacuation plans consulted in Sec. 118.11(b)(11).
The Agency recognizes that evacuation routes may vary, which is why
Sec. 118.11(b)(11) includes ``limitations on evacuation routes'' as a
plan element. A facility may include more than one diagram to reflect
different scenarios as necessary. Facility owner or operators may
include evacuation plans prepared in accordance with 29 CFR 1910.38,
but they must reflect the requirements of this section.
To the commenter who suggested cross referencing to evacuation
plans prepared under other statutes, while EPA understands there is
some redundancy in submitting a plan and in some cases cross
referencing is appropriate, the Agency maintains submitting the
evacuation plan here allows OSCs to have the plans readily available in
the event of a worst case discharge and to inform coordinated response.
However, a facility owner or operator may combine their plans in a
single ICP to reduce the administrative burden.
Discharge Detection Systems
The Agency maintains that in the event of a worst case discharge,
discharge detection systems are critical to inform response timelines.
If a facility demonstrably has the ability to cause substantial harm to
the environment, it must also have the ability to detect when such a
discharge is occurring. EPA notes, however, that the facility owner or
operator may include personnel procedures (visual examination, etc.)
designed to detect discharges. EPA recognizes that this may increase
costs but maintains that the effects of worst case discharges can be
catastrophic and costly (see chapter 3 of RIA in the docket).
EPA disagrees with a commenter who argued that discharge detection
systems for the 296 CWA hazardous substances should follow the same
requirements as for oils. The context of this regulation is for worst
case discharges of CWA hazardous substances, as such, discharge
detection systems should be sufficient for those events. Additionally,
the Agency notes that these systems should not be limited to response
actions, as they may alert a facility owner operator of a discharge in
the first place.
Response Actions
EPA has adjusted the language in this section to clarify that air
monitoring and water sample collection, including analytical methods
and laboratory support, must be described in this section. Monitoring
and sampling are critical components of CWA hazardous substance release
responses, since many CWA hazardous substances cannot be recovered, in
contrast to oil discharges, where recovery is more likely feasible.
Therefore, it is imperative that they be planned for accordingly.
Additionally, and in the same vein, EPA has added a requirement to
identify types of environmental monitoring to be collected, including
method collection techniques, parameter of interest measurement, a
description of how the data will be used in a response, and personal
protection and safety considerations.
A facility owner or operator; PWS; or responding Federal, State, or
local agency can determine whether it is necessary to obtain a third-
party to assess and monitor the community health effects following a
hazardous discharge to a PWS and make this information publicly
available. This will be part of the response actions to a discharge.
One commenter recommended that EPA require facilities to develop a
safety plan prior to conducting sampling that considers variable
factors like weather conditions, chemical hazards, and situational
awareness. EPA notes provisions for worker health and safety are found
at Sec. 300.150 of the NCP. The Agency emphasizes that the NCP
requires compliance with applicable worker health and safety
regulations, including OSHA, under Sec. 300.150(b) during a response
action taken by the responsible party, the responsible party must
assure that an occupational safety and health program consistent with
29 CFR 1910.120 is made available for protection of workers at the
response site.
Finally, EPA has added requirements for response actions to be
taken within one- and two-hours of discharge detection. Within one hour
of discharge detection, actions include making notifications,
mobilizing facility personnel, identifying the extent of the incident,
coordinating with the SRO, consulting the hazard evaluation to
determine potential effects of the discharge, ensuring containment and
neutralization systems are working, evacuation assessment, and
coordination with PWSs and local responders. Within two hours,
resources and monitoring must be deployed. Explicitly stating EPA's
expectations within these critical response time frames will ensure
resources are ready and available, and guide exercise and training
programs as well as GIUEs, further enabling readiness.
Disposal Plans
EPA has adjusted its approach to include disposal plans for
firefighting foam and runoff. As seen in responses such as the
Menominee Michigan Warehouse Fire, where several million gallons of
fire suppression water have been collected to minimize runoff of fire-
related contaminants into to the Menominee and Marinette water
treatment plant and adjacent Menominee River,\9\ these types of plans
are important to ensure chemicals are properly disposed of and to
minimize runoff of fire-related contaminants.
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Containment Measures
One commenter recommended that EPA define the term ``adequate
containment'' to prevent industry confusion and differences in
interpretations by the regions. Adequate containment will vary based on
the worst case discharge scenario and associated response actions and
consist of sufficient resources to contain the items described in Sec.
118.11(b)(15). As per the statutory authority of this action under CWA
sec. 311(j)(5), this is a response planning regulation. Inherently
safer technologies and designs related to CWA hazardous substance
storage are outside the scope of this rule. Nonetheless, EPA notes that
Sec. 118.11(b)(15) includes requirements for measures to provide
adequate containment and drainage of discharged CWA hazardous
substances in a response scenario, as this is a response function.
Training Procedures
See section III.D.vi of this preamble for a discussion of training
procedures.
Exercise Procedures
See section III.D.vi of this preamble for a discussion of training
procedures.
Self-Inspection
EPA is finalizing Sec. 118.11(b)(18) as proposed.
iv. Emergency Response Action Plan
In Sec. 118.11(c), EPA has added a provision requiring an
Emergency Response Action Plan (ERAP), similar to the provision under
the Oil Pollution Prevention FRP regulation at 40 CFR 112.20(h)(1). As
detailed in the proposed rule, the ERAP's purpose is to provide a
summary of steps for discharge source stabilization, including
immediate actions by the facility incident management team, such as
internal and external notifications and
[[Page 21951]]
initiation of CWA hazardous substance discharge preparedness and
evacuation procedures, to be kept in the front of the CWA hazardous
substance FRP or in a separate binder to accompany the full CWA
hazardous substance FRP. This requirement will provide important site-
specific information for facility personnel and responders. EPA has
found ERAPs to be important to plan holders responding to oil spills
and expects that a CWA FRP ERAP will be similarly critical for
responders to a CWA hazardous substance worst case discharge into or on
navigable waters or a conveyance to navigable waters.
v. Coordination Activities
As State and local emergency response officials are vital
participants in community and facility response planning, EPA disagrees
with the commenters who requested that EPA remove Sec. 118.12(c) as
well as the requirement to coordinate drills and exercises with local
public emergency response officials and invite them to participate in
Sec. 118.13(c)(1). The Agency maintains that such coordination is
critical for planning for worst case discharges since public entities
are often involved in response efforts and, as such, EPA has added
language to include local emergency planning and response organizations
outside of SERCs, TERCs, LEPCs, and TEPCs in coordination activities.
Additionally, the rule does not contain language that State and local
emergency response officials should set drill and exercise schedules;
rather, it states that facility owner or operators shall include
consulting with the appropriate officials to establish schedules and
plans.
EPA recognizes that, in some cases, it may be difficult to
coordinate with LEPCs, TEPCs, or other local emergency planning and
response organizations due to competing priorities or limited
resources. In response, the Agency has added Sec. 118.12(d)(3), which
allows a facility owner or operator to demonstrate through
documentation that he or she has made a good faith effort to coordinate
on the schedule required under Sec. 118.12(a). The Agency is retaining
the requirement to maintain signed agreements as a compliance tool and
to encourage in-depth, practicable coordination. Correspondence such as
email may be used for purposes of documenting good faith efforts, as
long as it is preserved. In terms of retention, facility owners or
operators are expected to maintain coordination documentation for the
life of the facility. Due to the ease of storing electronic records,
the Agency does not expect this to be burdensome, and past agreements
and discussions may be valuable tools in response planning, revision,
and augmentation.
EPA recognizes that historically, planning and response has been a
public function. However, as stated in the OPA Conference Report (H.R.
Rep. No. 101-653, 101st Cong., 2d Sess.), a major purpose of this
action is to shift the burden of worst case discharge planning from
public resources to private resources and ensure that facility owners
and operators are properly planning for worst case discharges of CWA
hazardous substances into or on navigable waters or a conveyance to
navigable waters. EPA agrees that facility and community plans should
work in concert to plan for these events. However, this regulation does
not put requirements on local emergency responders because that is
beyond the scope and authority for this action. Nonetheless, EPA notes
that ASTM E3241-20 Standard Guide for Coordination and Cooperation
between Facilities, Local Emergency Planning Committees, and Emergency
Responders is a valuable guide and resource and encourages LEPCs or
TEPCs and emergency responders to familiarize themselves with the
standard. The Agency is aware that many communities prepare all hazards
plans and reiterates that this regulation does not require additional
planning by emergency planners. Instead, facilities must reach out to
these planners and coordinate FRPs. Community planners then have access
to this information and any other types of information they may need to
strengthen their community plans.
vi. Facility Response Training, Drills, and Exercises
EPA proposed and is finalizing with minor adjustments training
requirements in Sec. 118.13(b). EPA is retaining a reference to OSHA's
29 CFR 1910.120 training specific to hazardous substances, while also
ensuring that training is conducted for facility personnel, private
personnel, casual laborers, and volunteer responders. However, in
response to commenter concerns and consistent with the Oil Pollution
Prevention FRP program, training may be specific to job tasks and
personnel roles. This additional training will ensure the full
population of those who could respond to a worst case discharge are
prepared. The Agency notes that 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 (29 CFR 1910.120(a)(1)(v)) and facility owners
or operators should already be complying with these requirements. EPA
has added language to Sec. 118.13(b) to clarify that facility
personnel are also subject to these requirements.
While some commenters suggested that the provision that requires
facilities to work with and train volunteers and casual laborers who
may respond to a discharge should be removed from the FRP requirements
and instead a public entity such as the LEPC or TEPC should coordinate
volunteer and casual laborer response activities, EPA disagrees, as
this shifts the burden of properly training response personnel to the
public, which is counter to the intent of OPA 90. Additionally, there
may be LEPCs or TEPCs that are inactive or do not have time, personnel,
resources, or capabilities to provide this type of training.
To account for modern business practices and the easy of electronic
record storage, EPA has adjusted the documentation provision in Sec.
118.13(b)(4) to allow records to be maintained under usual and
customary business practices and either as an annex or included in the
FRP.
Under Sec. 118.13(c), EPA is finalizing the drills and exercises
requirements with minor adjustments. In Sec. 118.13(b)(1), a facility
owner or operator must coordinate with local public emergency response
officials when appropriate and invite them to participate. EPA has
added language in Sec. 118.13(c)(1) which allows a facility owner or
operator to demonstrate through documentation that he or she has made a
good faith effort to coordinate. Finally. EPA notes that the
Preparedness for Response Exercise Program (PREP) guidelines will be
updated to reflect the requirements under 40 CFR part 118, CWA
Hazardous Substance FRPs.
11. Substantial Harm Certification Form
EPA has made several adjustments to Appendix A: Substantial Harm
Certification Form to reduce confusion and duplicative entries as well
as to aid in compliance. EPA has adjusted the initial submission date
from one month to within 60 days of meeting the criteria in Sec.
118.3(a) and Sec. 118.3(b), for covered facilities that do not satisfy
the substantial harm criteria in Sec. 118.3(c). Because substantial
harm calculations and modeling may be involved, the Agency recognizes
that additional time may be necessary. Those submitting an FRP will
still need to submit a Substantial Harm Certification Form, which
should add minimal burden, since this information will be included in
their FRP. However, facilities submitting their FRPs may submit their
[[Page 21952]]
Appendix A Substantial Harm Certification Form at the same time. EPA
has added a requirement to list the ACP(s) consulted in question 3, as
well as list the FWSEs and list and describe the public receptors
potentially affected by a worst case discharge. This will allow
reviewers to cross check entries against the ACP. EPA is not requiring
submission of forms to local emergency response organizations, though
covered facility owners or operators must make the forms available to
local emergency response organizations upon request. Covered facility
owner or operators must also recertify their Forms every five years.
EPA understands why covered facilities are interested in keeping
the form as simple as possible and has taken efforts to that effect.
However, there are countervailing reasons for including more robust
information. Completing and submitting Appendix A ensures that the
covered facility reviews their potential to cause substantial harm to
the environment and that EPA has access to updated information in a
timely manner. This approach is based on the Oil Pollution Prevention
FRP regulation, 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. The inclusion
of 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 will assist EPA in making compliance
determinations as well as provide sufficient information to identify
those covered facilities that could reasonably be expected to cause
significant and substantial harm to the environment. Again, while EPA
recognizes that the form will require time and resources to complete,
the agency maintains that this information is critical for protecting
the environment and can help covered facility owner or operators
identify risks at their facilities.
EPA disagrees that these forms will cause confusion for the public.
Appendix A will be used as a public information, enforcement, and
compliance tool for this regulation; thus, the relevant information on
CWA hazardous substance present onsite must be readily available. EPA
has revised Appendix A in the final rule to aid in clarity. For
example, EPA has adjusted the language in Question 5 to clarify that
the reportable discharge must have been to navigable waters. For
discharges after the effective date of this rule, EPA expects that
covered facility owners or operators will collect this information
routinely in order to improve their business practices and minimize
accidental discharges. The adverse impact reported are limited to what
is listed in Appendix A. In addition, conforming changes regarding the
requirement to analyze all CWA hazardous substances above the threshold
level onsite have been made. Finally, EPA has adjusted the
certification statement for clarity as to its expectations of the
certifier.
12. Confidential Business Information (CBI)
EPA agrees with commenters concerned about security and the
sensitivity of certain types of information and will work with its
Federal partners such as DHS and DOJ and other appropriate agency
security and cybersecurity experts to determine which parts of the FRP
may not be made publicly available. Additionally, the Agency takes
personal privacy seriously and will ensure the safety of individual
information and data.
E. Additional Considerations
1. Climate Change
EPA appreciates the concerns raised by the commenters and
understands that the unpredictability of breadth of the impacts of
climate change make it challenging to assess. Because the impacts of
climate change continue to expand, EPA expects to provide ongoing
compliance assistance and guidance to assist covered facilities in
compliance with the climate change considerations in the final rule.
That said, EPA disagrees that climate change impacts are occurring on a
longer-term scale than can be considered within the FRP's five-year
cycle. For example, the increase in severity and frequency of severe
weather, including conditions resulting in flooding or drought, is a
clear impact of climate change that should be considered by a covered
facility owner or operator when evaluating their worst case discharge
scenarios. The agency agrees that owners or operators should use the
best available climate data when evaluating climate risks because the
climate is changing rapidly compared to historical conditions. As part
of ongoing compliance assistance, EPA expects to make existing and
evolving data sources and tools available. The Agency recognizes that
these evaluations are not without costs, however, due to the known
risks of increasing and more frequent severe weather and other climate
change impacts, their inclusion in this action is vital to ensure
protection of human health and the environment.
One commenter stated that, because climate change could impact
factors like the distance to navigable waters or a conveyance to
navigable waters, EPA could plan to reassess CWA worst case scenario
discharge risks at a regular interval to see if the actions'
requirements remain effective. The Agency notes that FRPs must be
recertified every five years as per Sec. 118.4(a)(6), which will give
owners or operators the opportunity to reassess their worst case
discharge scenarios. Finally, EPA appreciates the suggested data and
information sources suggested by commenters and will evaluate them for
purposes of ongoing compliance assistance.
2. Communities With Environmental Justice Concerns
As discussed in the Preamble to the proposed rule, there is clear
evidence of co-location of hazardous substance facilities in or near
communities with environmental justice concerns. Specifically, the co-
location assessment confirms that industrial facilities and aboveground
storage tanks are disproportionately located in these communities and
worst case discharges or threats of worst case discharges of CWA
hazardous substances are examples of environmental justice concerns
that can affect local communities. Currently, once a facility meets the
applicability criteria in Sec. 118.3, their hazard evaluation (Sec.
118.11(b)(3)) must examine impacts on nearby communities that could be
affected by a discharge. Although, the final rule does not require
consultation with communities with environmental justice concerns,
there are other avenues of participation for the public in the response
planning process, including involvement in the ACP development process
or participation in the LEPC or TEPC. EPCRA section 303 tasks LEPCs and
TEPCs to develop community emergency response plans and to share
chemical information to citizens in the community and is the current
avenue for public participation in these types of plans, in
consideration of communities with environmental justice concerns.
Existing stewardship programs through partnerships or company
initiatives may fulfill the requirements in Sec. 118.11(b)(3) or be
augmented to do so. In addition, one factor RAs may consider in
determining whether to require CWA hazardous substance FRPs for covered
[[Page 21953]]
facilities is the potential for a worst case discharge to adversely
impact communities with environmental justice concerns.
3. Facility Density
EPA recognizes the increased risk of worst case discharges in areas
with a high density of CWA hazardous substance facilities that could be
involved in an incident impacting multiple sites. In Sec.
118.5(b)(10), EPA has included density of facilities in the immediate
area with CWA hazardous substances onsite as a factor that an RA may
consider in determining whether to require that a covered facility
owner or operator to submit an FRP. EPA notes, however, that the hazard
evaluation (Sec. 118.11(b)(3)) must already consider local businesses
that could be affected by a worst case discharge. EPA also recognizes
that there are many factors, including greenbelts, facility design,
spacing requirements, facility size, and manufacturing processes, that
complicate considerations for facility density. Accordingly, the RA
must take all these site-specific circumstances into account when
making a determination.
F. 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 finalizing as proposed minor
changes to 40 CFR part 300 to ensure uniformity. EPA did not receive
any comments on these changes which include adding references to 40 CFR
part 118 in Sec. Sec. 300.185 and 300.211, adding Sec. 300.411 to
detail requirements for responses to CWA hazardous substance worst case
discharges, and mirroring the requirements for oil worst case
discharges in Sec. 300.324, including OSC responsibilities to notify
the NSFCC, requiring the FRP be initiated, implementing ACP worst case
discharge plans, taking response actions, and coordinating private and
public equipment for response.
IV. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for Executive Order 12866 review. Documentation of any
changes made in response to the Executive Order 12866 review is
available in the docket. The EPA prepared an economic analysis of the
potential impacts associated with this action. This Regulatory Impact
Analysis, Clean Water Act Hazardous Substance Facility Response Plans,
is available in the docket for this action.
B. Paperwork Reduction Act (PRA)
The information collection activities in this final action have
been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et
seq. The Information Collection Request (ICR) document prepared by EPA
has been assigned EPA ICR No. 2710.02. You can find a copy of the ICR
in the docket for this rule, and it is briefly summarized here. The
information collection requirements are not enforceable until OMB
approves them.
The CWA hazardous substance provisions of the final rule include
requirements for onshore non-transportation-related facilities that
could reasonably be expected to cause substantial harm to the
environment, based on their location, to prepare FRPs for worst case
discharges and submit them to EPA. Specific CWA hazardous substance FRP
components 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.
EPA has estimated an average annual total burden for respondents of
984,891 hours per year in the first three years, average annual labor
cost of $69.7 million and operations and maintenance (O&M) costs of
$18.0 million ($87.7 million total cost per year). EPA has carefully
considered the burden imposed upon the regulated community by the
regulations. EPA believes that the activities required are necessary
and, to the extent possible, has attempted to minimize the burden
imposed. The requirements specified in the final rule are intended to
have a mitigating effect on CWA hazardous substance worst case
discharges because the rule provisions address the categories of
damages and adverse impacts expected from this type of discharge.
Respondents/affected entities: 12,618, including 7,264 estimated
for rule familiarization and the Substantial Harm Certification Form;
and 5,354 facilities further developing and maintaining FRPs under the
final rule.
Respondent's obligation to respond: Mandatory.
Estimated number of respondents: 12,618 responses by 12,618
respondents during the three-year ICR period. The overall average
number of responses during the ICR period is 4,206.
Frequency of response: One-time, then if required to amend an FRP.
Total estimated burden: Average hours per year: 984,891. Burden is
defined at 5 CFR 1320.3(b).
Total estimated cost: Average cost per year: $87,705,322 per year.
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 EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, the Agency will announce that approval in the Federal
Register and publish a technical amendment to 40 CFR part 9 to display
the OMB control number for the approved information collection
activities contained in this final rule.
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 are 1,509
potentially small businesses classified under a broad range of 148
different North American Industry Classification System (NAICS)
industries, at the five-digit level. For facilities owned by regulated
small entities, the cost per facility ranges from $11,753 to $20,064,
depending on the industry. The Agency has determined that 47 small
entities may experience a cost-to-revenue impact of 1% to 3% of
revenues (or, about three percent of all small entities). These
entities are in four industries:
Animal Food Manufacturing (33 small entities).
Sawmills and Wood Preservation (4 small entities).
Resin and Synthetic Rubber Manufacturing (9 small
entities).
Marine Cargo Handling (1 small entity).
The Agency also estimated 21 entities (around 1.4 percent of all
regulated small entities), may experience an
[[Page 21954]]
impact greater than 3% of revenue. These entities include:
Electric Power Generation (19 small entities).
Support Activities for Mining (2 small entities).
As documented in section 8.3 of the RIA for the final rule, and in
accordance with RFA requirements and SBA guidance, EPA has prepared a
screening analysis to assess small entity impacts. This conclusion was
reached by identifying the subset of small entities regulated by the
final action based on SBA criteria for each NAICS industry. Then, EPA
assessed the potential impact of the rule on those small entities using
the cost-to-revenue threshold test. The Agency compared the annualized
cost per small entity to annual revenues and identified entities where
costs exceed one or three percent of annual revenues.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This final rule imposes no new enforceable duty on
any State, local, or Tribal governments or the private sector.
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 responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has Tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
Tribal governments, nor preempt Tribal law. EPA has concluded that this
action may have Tribal implications because it requires covered
facility owner or operators to notify their local TEPC if a worst case
discharge should occur and coordinate with their TEPC on developing the
Facility Response Plan and any associated community emergency response
planning.
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 covered 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. EPA consulted with Tribal officials
under EPA Policy on Consultation and Coordination with Indian Tribes
early in the process of developing this regulation to enable them to
have meaningful and timely input into its development. EPA held a
national Tribal consultation on the Clean Water Act Hazardous Substance
Worst Case Discharge Planning Regulation Proposal in FY2022. On March
21, 2022, EPA sent a notification letter via email to Tribal leaders of
all 574 federally recognized Tribes in lieu of a hardcopy because of
the COVID-19 pandemic. In addition, EPA hosted one national Tribal
informational webinar on April 6, 2022, to explain the action, answer
questions, and record Tribal input. Five Tribal participants attended
the webinar. No Tribes requested government to government consultation
with EPA on the Clean Water Act Hazardous Substance Worst Case
Discharge Planning Regulation Proposal. A few Tribes provided comments
during the webinar. No federally recognized Tribes submitted comments
to the docket during the public comment process.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 directs Federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in Federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because the EPA does not believe the environmental health or
safety risks addressed by this action present a disproportionate risk
to children. The Agency has concluded that the effect of the
requirements codified in this final rule will mitigate the adverse
effects of environmental and socio-economic damage that could otherwise
result from worst case discharges. This final action will therefore not
have a disproportionate adverse effect on children. However, EPA's
Policy on Children's Health applies to this action. Information on how
the Policy was applied is available under ``Children's Environmental
Health'' in the Supplementary Information section of this preamble.
H. Executive Order 13211: Actions 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 requirements specified in the final
rule are intended to result in greater overall environmental
protection. The final rule will not cause reductions in the supply or
production of oil, fuel, coal, or electricity; nor will it result in
increased energy prices, increased cost of energy distribution, or an
increased dependence on foreign supplies of energy.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that the human health or environmental conditions
that exist prior to this action result in or have the potential to
result in disproportionate and adverse human health or environmental
effects on communities with environmental justice concerns. Under
Executive Order 14096, ``Revitalizing Our Nation's Commitment to
Environmental Justice for All'' (which builds upon Executive Order
12898 \10\) agencies must, as appropriate and consistent with
applicable law, identify, analyze, and address the disproportionate and
adverse human health and environmental effects (including risks) and
hazards of rulemaking actions and other Federal activities on
communities with environmental justice concerns.\11\ Worst case
discharges of hazardous substances from facilities regulated by this
action would likely pose disproportionate risks to such communities
located near these sites e.g., including communities that have been
historically marginalized by underinvestment and overburdened by
pollution. EPA has concluded that the regulatory requirements will
advance fair treatment of those communities by
[[Page 21955]]
reducing the disproportionate damages that worst case discharges might
otherwise inflict on those areas.
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\10\ Exec. Order No. 12898 of Feb. 11, 1994 (Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income
Populations), 59 FR 7629 (Feb. 16, 1994).
\11\ For further information, including the definition of
environmental justice, see Exec. Order No. 14096 of Apr. 21, 2023
(Revitalizing Our Nation's Commitment to Environmental Justice for
All), 88 FR. 25,251 (Apr. 26, 2023).
---------------------------------------------------------------------------
The EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on communities with environmental
justice concerns. EPA has concluded that the regulatory requirements
will advance fair treatment of those communities by reducing the
disproportionate damages that worst case discharges might otherwise
inflict on those areas. EPA has concluded that the requirements
codified in this final rule will mitigate the adverse effects of
environmental and health damage that could otherwise result from worst
case discharges and are likely to reduce existing disproportionate and
adverse effects on communities with environmental justice concerns. EPA
has concluded that the regulatory requirements will advance fair
treatment of those communities by reducing the disproportionate damages
that worst case discharges might otherwise inflict on those areas.
The focus of this action is to finalize new requirements for FRPs
for worst case discharges of CWA hazardous substances for onshore non-
transportation related 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 or a
conveyance to navigable waters. The EPA additionally identified and
addressed environmental justice concerns associated with the final rule
and qualitatively assessed whether the requirements codified in this
final rule will mitigate the adverse effects of environmental and
health damage that could otherwise result from worst case discharges.
EPA has concluded that, while the changes in this rule were independent
of environmental justice considerations, the regulatory requirements
will advance fair treatment of communities with environmental justice
concerns by reducing the disproportionate damages that discharges might
otherwise inflict on them. Specifically, EPA has concluded that:
Communities with environmental justice concerns (including
communities historically marginalized by underinvestment and
overburdened by pollution) are more likely to be in proximity to those
covered facilities (and thus at greater risk) than other communities.
To the extent that communities living closer to covered facilities are
more likely to be exposed if a discharge occurs, potential CWA FRP
facilities pose a greater risk to these groups. Therefore, the final
action will reduce risk for these communities.
The final requirements for FRPs will improve preparedness
planning and public awareness of planning and response activities. EPA
expects the final rule requirements will also enhance EPA's ability to
address area- and regional-specific concerns.
The information supporting this review is contained in the RIA,
section 8.7, which includes an environmental justice analysis and is
available in the docket for this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action does not meet the criteria set forth in
5 U.S.C. 804(2).
List of Subjects in 40 CFR Parts 118 and 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 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 FACILITY RESPONSE
PLANS
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.
118.8 Exceptions 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 impacts due to climate change,
such as the increased frequency and intensity of extreme weather
events, temperature fluctuations, rising seas, storm surges, inland and
coastal flooding, drought, wildfires, and permafrost melt in northern
areas 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; or
[[Page 21956]]
(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 means the greatest distance a CWA
hazardous substance in a worst case discharge into or on the navigable
waters or a conveyance to navigable waters can travel while still
having the ability to cause injury to public receptors or fish,
wildlife, and sensitive environments, as determined under Sec.
118.3(c)(1) and (c)(3) using endpoint concentrations enumerated 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 of
a CWA hazardous substance 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).
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.
Facility means any 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. Therefore, contiguous or
non-contiguous buildings, properties, parcels, leases, structures,
installations, pipes, or pipelines under the ownership or operation of
the same person may, for legitimate operational and response planning
reasons, be considered separate facilities.
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 (including to human health) 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 or in a specific plan approved by the Regional
Administrator.
Maximum quantity onsite means the maximum total aggregate quantity
for each CWA hazardous substance present at all locations within the
entire non-transportation-related onshore facility at any 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 as defined in 40
CFR 120.2, adjoining shorelines, and the exclusive economic zone.
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 parts 171-180.
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 part 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.
Person means 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 into or on the
navigable waters or a conveyance to navigable waters from a non-
transportation-related onshore 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.
[[Page 21957]]
Publicly Owned Treatment Works is defined in 40 CFR 403.3 and
includes Federally Owned Treatment Works.
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 into or on the navigable waters or a conveyance to
navigable waters.
Public vessel as defined by section 311(a)(4) of the CWA 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 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 non-transportation-related onshore
facility is located.
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.
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 environment, public health, or
welfare, including, but not limited to, persons, fish, shellfish,
wildlife, public water systems, and public and private property,
shorelines, and beaches.
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 means 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 part 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 parts 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 as defined by section 101(28) of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), means
every description of watercraft or other artificial contrivance used,
or capable of being used, as a means of transportation on water; and,
as defined by section 311(a)(3) of the CWA, 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 to connect water treatment
plants or water sources (in the absence of treatment) to customers via
a network of pipes, storage facilities, valves, and pumps.
Wellhead protection area means the surface and subsurface area
surrounding a water well or wellfield, supplying a public water system,
through which contaminants are reasonably likely to move toward and
reach such water well or wellfield.
Worst case discharge means the largest foreseeable discharge in
adverse weather conditions including 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 or a conveyance to navigable waters by meeting the
following criteria:
(a) Threshold quantity. The maximum quantity onsite for any CWA
hazardous substance listed at 40 CFR 116.4 at any time, meets or
exceeds 1,000 times the Reportable Quantity in pounds (kilograms) found
at 40 CFR 117.3. Do not include any exceptions or exemptions identified
in Sec. 118.8. 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 non-transportation-related
onshore facility boundary or nearest opportunity for discharge is
located within one-half mile of navigable waters or a conveyance to
navigable waters; and
(c) Substantial harm criteria. The non-transportation-related
onshore facility meets one or more of the following substantial harm
criteria:
(1) Ability to cause injury to fish, wildlife, and sensitive
environments. The non-transportation-related onshore 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 of a CWA
hazardous substance or the aqueous products that form when the CWA
hazardous substance enters water from the non-transportation-related
onshore facility could cause injury to fish, wildlife, and sensitive
environments. For identification of fish, wildlife, and sensitive
environments, owners or operators shall use the applicable Area
Contingency Plan prepared pursuant to section 311(j)(4) of the CWA, in
addition to identifying other areas pursuant to the definition in Sec.
118.2;
(2) Ability to adversely impact a public water system. The non-
transportation-related onshore facility is located at a distance to an
endpoint such that a worst case discharge could adversely impact a
public water system, as described by the five criteria listed
[[Page 21958]]
under paragraphs (c)(2)(i) through (v) of this section. This assessment
should be conducted in collaboration with the downstream public water
system(s). If the owner or operator is unable to work with the public
water system after good faith efforts to do so, the owner or operator
should use the estimated peak concentration of the CWA hazardous
substance from a worst case discharge at the water intake to assess the
potential to adversely impact a public water system. Ability to
adversely impact a public water system includes a concentration of a
CWA hazardous substance, or the aqueous products that form when the CWA
hazardous substance enters water, 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;
(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; or
(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 non-
transportation-related onshore 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 into or on the navigable waters or a
conveyance to navigable waters could cause injury to a public receptor
as defined in Sec. 118.2; or
(4) Reportable discharge history. The non-transportation-related
onshore facility has had a reportable CWA hazardous substance discharge
under Sec. 117.21 within the last five years that reached navigable
waters.
Sec. 118.4 General requirements.
(a) Preparation, submission, and implementation of facility
response plans. The owner or operator of any non-transportation-related
onshore facility meeting the applicability requirements of Sec. 118.3
shall prepare, submit, and implement a facility response plan according
to the following provisions:
(1) Initially regulated facilities. The owner or operator of a non-
transportation-related onshore facility in operation on November 30,
2026 that satisfies the criteria in Sec. 118.3 shall prepare and
submit a facility response plan that satisfies the requirements of this
section and Appendix A: Substantial Harm Certification Form to the
Regional Administrator by June 1, 2027.
(2) Newly regulated facilities. The owner or operator of a non-
transportation-related onshore facility that did not satisfy the
criteria in Sec. 118.3 on November 30, 2026, but satisfies the
criteria in Sec. 118.3 after November 30, 2026 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 and Appendix A: Substantial Harm Certification Form to the
Regional Administrator within six months of meeting the criteria or
notification.
(3) Newly constructed facilities. For a newly constructed non-
transportation-related onshore facility that commences operation after
June 1, 2027, 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 and Appendix A: Substantial Harm
Certification Form to the Regional Administrator prior to the start of
operations. Adjustments to the facility response plan to reflect
changes that occur 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 non-transportation-related onshore facility required to prepare
and submit a facility response plan after June 1, 2027, as a result of
a planned change in design, construction, operation, or maintenance so
that the non-transportation-related onshore facility now meets the
criteria in Sec. 118.3 of this part, the owner or operator shall
submit the facility response plan and Appendix A: Substantial Harm
Certification Form to the Regional Administrator before the portion of
the non-transportation-related onshore facility undergoing the planned
change commences operations. Adjustments to the facility response plan
to reflect changes that occur 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 non-transportation-related onshore facility required to
prepare and submit a facility response plan after June 1, 2027, as a
result of an unplanned event or change in facility characteristics that
renders the non-transportation-related onshore facility subject to the
criteria in Sec. 118.3, the owner or operator shall submit the
facility response plan and Appendix A: Substantial Harm Certification
Form to the Regional Administrator within six months of the unplanned
event or change.
(6) Recertification. Owners or operators must review and recertify
their facility response plans and Appendix A: Substantial Harm
Certification Forms every five years.
(7) Updated CWA hazardous substance information in 40 CFR 116.4 or
40 CFR 117.3. If a CWA hazardous substance is added or removed from the
list maintained at 40 CFR 116.4 or a reportable quantity adjusted as
listed at 40 CFR 117.3, an owner operator shall update their facility
response plan accordingly within six months.
(b) Facility response plan amendments. (1) The owner or operator of
a non-transportation-related onshore 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
change that materially may affect the response to or potential for a
worst case discharge, including:
(i) A change in the non-transportation-related onshore facility's
configuration that materially alters the information included in the
facility response plan;
(ii) A change in the CWA hazardous substance maximum quantity
onsite (i.e., increase or decrease in the maximum quantity stored
onsite) 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 non-transportation-related onshore
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
[[Page 21959]]
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. 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 non-transportation-related onshore
facility that submits changes to a facility response plan as provided
in the preceding paragraphs of this section shall provide an 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 non-
transportation-related onshore 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 non-
transportation-related onshore facility meets the criteria in Sec.
118.3(a) and (b) but not (c):
(1) If the non-transportation-related onshore facility is in
operation on March 30, 2027, complete and submit to the EPA Regional
Administrator the Substantial Harm Certification Form in Appendix A to
this part by June 1, 2027, or, for facilities meeting the criteria in
Sec. 118.3(a) and (b) after March 30, 2027, within 60 days. Owner or
operators must retain their completed Appendix A and supporting
documentation for the duration that the CWA hazardous substance maximum
quantity onsite meets 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 a recertification of
the Substantial Harm Certification Form every five years, or within 60
days of a change at or outside the non-transportation-related onshore
facility that impacts the potential to cause substantial harm to the
environment in accordance with the criteria in Sec. 118.3.
(4) Provide the Substantial Harm Certification Form in Appendix A
to this part to local emergency response organizations upon request.
(d) Assertion of claims of confidential business information. (1)
Except as provided in paragraph (2) of this section, an owner or
operator of a non-transportation-related onshore 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 confidential business
information 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 non-transportation-related onshore 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 and amendments. After considering the factors in paragraph (b) of
this section, 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. If such
a determination is made, the Regional Administrator shall notify the
owner or operator in writing and shall provide a basis for the
determination and the owner or operator shall submit the facility
response plan to the Regional Administrator as per the preparation,
submission, and implementation guidelines in Sec. 118.4. The Regional
Administrator may require amendments to any facility response plan that
does not meet the requirements Sec. 118.11.
(b) Regional Administrator substantial harm determination. To
determine whether a non-transportation-related onshore 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 into or on the navigable waters
or a conveyance 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 and characteristics (e.g., ignitability or reactivity)
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);
(5) Location in a source water protection area;
(6) Ability to cause injury to public receptors;
(7) Lack of passive mitigation measures or systems, including those
[[Page 21960]]
that enhance resilience to climate change;
(8) Potential to adversely impact communities with environmental
justice concerns;
(9) Potential vulnerability to adverse weather conditions resulting
from climate change;
(10) Density of facilities with CWA hazardous substances onsite in
the immediate area;
(11) Reportable discharge history; or
(12) Other site-specific characteristics and environmental factors
that the Regional Administrator determines to be relevant to recovery,
shoreline protection, and cleanup.
(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 non-
transportation-related onshore 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 or a
conveyance to 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 in writing
and:
(1) Approve any facility response plan that meets the requirements
of Sec. 118.11; and
(2) 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 non-transportation-related
onshore 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
or a conveyance to 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 or a conveyance to navigable
waters;
(3) Age or condition 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- 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 non-
transportation-related onshore facility does not agree that the
facility meets the applicability criteria under Sec. 118.3 or with the
Regional Administrator's determination under Sec. 118.5 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 a conveyance to navigable waters, or that
amendments to the facility response plan are necessary, 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 written decision with the basis
for the determination as soon as practicable. The owner or operator
shall then follow the preparation, submission, and implementation
guidelines in Sec. 118.4.
(b) Owner or operator request to reconsider classification status.
In the event the owner or operator of a non-transportation-related
onshore facility believes a change in 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 written decision with the basis
for the determination and notify the owner or operator as soon as
practicable.
(c) Appeals 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 written decision with the basis for
the determination and notify the owner or operator as soon as
practicable. If the EPA Administrator determines a non-transportation-
related onshore facility is subject to this regulation, the owner or
operator must submit a facility response plan to the Regional
Administrator following the preparation, implementation, and submission
guidelines in Sec. 118.4.
Sec. 118.7 Petitions.
Any person, including a member of the public or any representative
from a Federal, State, or local agency who has a reasonable basis to
believe that a non-transportation-related onshore 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 or a conveyance to navigable waters may
petition the Regional Administrator to determine whether the facility
meets the criteria in Sec. 118.3. Such a petition shall include a
discussion of how the factors in Sec. 118.3 apply to the non-
transportation-related onshore facility and EPA shall make the petition
available to the owner or operator in question and provide an
opportunity to respond. The Regional Administrator shall consider such
petitions and respond as soon as practicable in writing including the
basis for the determination. The Regional Administrator may render a
decision based solely on the information in the petition but may also
gather additional information before rendering a decision.
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:
[[Page 21961]]
(1) Any non-transportation-related 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 non-transportation-related
onshore facility (such as proximity to navigable waters, land contour,
drainage, etc.) and must exclude consideration of manmade features such
as dikes, equipment, depressions, 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, 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 parts 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 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
quantity onsite meets or exceeds the threshold quantity of a CWA
hazardous substance or substances, under Sec. 118.3(a), at the non-
transportation-related onshore facility, the following exemptions
apply:
(1) Articles. CWA hazardous substances contained in articles need
not be considered when determining whether the maximum quantity 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
quantity onsite meets or exceeds the threshold quantity:
(i) Structural components. Use as a structural component of the
non-transportation-related onshore 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) Wastewater treated by Publicly Owned Treatment Works. Use of
municipal wastewater entering a publicly owned treatment works prior to
treatment under a National Pollution Discharge Elimination System
permit;
(vi) Compressed air. Use of CWA hazardous substances present in air
used either as compressed air or as part of combustion;
(vii) 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; and
(viii) RCRA hazardous waste. Storage or accumulation of hazardous
waste regulated under the Resource Conservation and Recovery Act
Standards for Owners and Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities, 40 CFR parts 264 and 265, and
Resource Conservation Recovery Act Standards Applicable to Generators
of Hazardous Waste, 40 CFR part 262 subpart M.
Sec. 118.9 Mixtures.
For the purposes of determining the CWA hazardous substance maximum
quantity onsite at the non-transportation-related onshore 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 quantity onsite, as defined in
Sec. 118.2, meets or exceeds the threshold quantity of any CWA
hazardous substance in the mixture.
(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 quantity onsite of the mixture or
solution meets or exceeds the quantity for the CWA hazardous substance
established in Sec. 118.3(a) with the lowest threshold quantity.
Sec. 118.10 Worst case discharge.
Non-transportation-related onshore facility owners or operators are
required to model a worst case discharge scenario, determine
appropriate endpoints using Appendix B as per Sec. 118.3(c)(1) and (3)
from a discharge into or on the navigable waters or a conveyance to
navigable waters, calculate the distances to endpoints and CWA
hazardous substance planning distances, and compare the distances to
endpoints against the CWA hazardous substance planning distances from
the non-transportation-related onshore facility. If the CWA hazardous
substance planning distances determined are shorter than the distances
to endpoints as per Appendix B, the worst case discharge can cause
substantial harm. Owners or operators shall also use their worst case
discharge scenario(s) to determine if the non-transportation-related
onshore facility has the ability to adversely impact public water
systems per Sec. 118.3(c)(2) from a discharge into or on the navigable
waters or a conveyance to navigable waters. The worst case discharge
scenarios must represent each CWA hazardous substance onsite that meets
or exceeds the threshold quantity set in Sec. 118.3(a). Each scenario
must use 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 quantity of a single container, such as a bulk storage tank,
process vessel, rail car, or mobile or portable container;
(2) For CWA hazardous substances in interconnected containers, the
maximum quantity of a group of interconnected containers; or
(3) For substances in pipes, the maximum quantity of a pipe or
interconnected pipes, and the owner or operator must provide evidence
in Appendix A that containers with common piping or piping systems are
not operated as one unit.
(4) For mixtures of CWA hazardous substances, follow the procedures
in Sec. 118.9.
(b) Planning distance determinations. To determine the distance to
endpoints for fish, wildlife, and sensitive
[[Page 21962]]
environments, public water systems, and public receptors as referenced
in Sec. 118.3(c), an owner or operator shall use a methodology, model,
or other technique that accounts for facility-specific conditions and
accounts for the stated requirements in this paragraph. An owner or
operator 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. Any models used for planning distance
determinations shall be used in exercises conducted per Sec. 118.13.
(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 CWA hazardous substance planning distance
endpoints, owners or operators shall consider the following parameters:
(i) Factors affecting overland transport including:
(A) Nearest opportunity for discharge into or on the 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 along the overland flow path into or on the navigable
water; and ignitability and explosive potential;
(ii) Factors affecting in-water transport including:
(A) Point of entry to navigable waters;
(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 waters 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 or
moving waters; currents; wave height; tidal influence; and water
temperature, pH, alkalinity, 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, Area Contingency
Plans, and Regional 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 and
Regional Contingency Plans as per 40 CFR 300.210.
(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;
(ii) Include a signed affirmation that the owner or operator has
reviewed relevant plans during facility response plan development and
resubmission and;
(iii) Include a list of area plans and sub-area plans reviewed.
(2) Qualified individual. Identify the qualified individual or
documented management system 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 worst case 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, the CWA hazardous substance discharged;
(ix) Coordinate rescue and response actions as previously arranged
with 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
[[Page 21963]]
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 as required by 118.4(a)(6) and (b)(1).
(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; facility location information described in a
manner that would aid a reviewer and a responder in locating the
facility, EPA identification numbers, and indication if the facility is
located in or drains into a wellhead protection area as defined by the
Safe Drinking Water Act of 1986;
(2) Owner or operator information. Contact information to include
name and preferred contact method;
(3) Hazard evaluation. Hazard evaluation for worst case discharge
into or on the navigable waters or a conveyance to navigable waters 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 as per
118.10; impacts to communities with environmental justice concerns; and
impacts of climate change, including but not limited to the increased
frequency and intensity of extreme weather events, temperature
fluctuations, rising seas, storm surges, inland and coastal flooding,
drought, wildfires, and permafrost melt in northern areas. Illustrative
diagrams of the hazard evaluation should be included.
(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 and age 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 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 waters with additional data
including date, time, and discharge duration; CWA hazardous
substance(s) discharged; estimated quantity discharged in pounds;
quantity discharged that reached navigable waters 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 with all data to be retained
for the life of the facility;
(5) Response personnel and equipment. The identity and a
description of response personnel, 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, including response resources with
firefighting capability and the availability of resources if facility
or mutual aid resources are not capable of handling a worst case
discharge incident resulting from a fire or explosion. The owner or
operator of a facility that does not have adequate firefighting
resources located at the facility or that cannot rely on sufficient
local firefighting resources through mutual aid agreements must
identify adequate firefighting resources, including contracted
resources. The response plan must also identify an individual located
at the facility to work with the fire department in a response. This
individual shall also verify that sufficient well-trained firefighting
resources are available within a reasonable response time to a worst
case scenario. The individual may be the qualified individual
identified in the response plan or another appropriate individual
located at the facility;
(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, local response team (fire department or
cooperatives), fire marshal, 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 media 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, explosion potential, and any
other information that may be helpful to responders and the public,
including updates on the scope and nature of the discharge as
available;
(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 or a description of documented management system that
can perform the stated functions, as appropriate;
(10) Response equipment information. A description of the
facility's response equipment, including roles in response actions,
location of the equipment, last inspection or response equipment test
date, inspection frequency, last deployment drill date, deployment
[[Page 21964]]
frequency, response times, and equipment testing;
(11) Evacuation plans. Facility-wide plans for evacuation including
a diagram. Include identification and documentation of coordination
with community evaluation plans, as appropriate, and consider 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 into or on the navigable water or a
conveyance to navigable waters as appropriate, including personnel
(i.e., routine walk-around visual inspection) or automatic discharge
detection for regular and afterhours operations by CWA hazardous
substance, reliability checks, and inspection frequency;
(13) Response actions. This section should describe the 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 worst case 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 worst case discharge. Identify the
types of environmental monitoring data to be collected, collection
methods, techniques for measuring the environmental parameters of
interest (including established analytical methods when applicable), a
description of the data's utility during a response (including
procedures for sharing data with response personnel and the public),
and required personal protection requirements and safety procedures
during data collection and analysis. Include a description of actions
to be taken within:
(i) One hour of discharge detection: Complete notifications;
mobilize facility response personnel for immediate response actions;
identify the scale of the incident and coordinate with SRO on
appropriate response actions; complete cross-check of worst case
discharge scenarios and resulting potential effects to begin tactical
planning based on the scale of the incident; ensure containment and
neutralization systems are operational; coordinate evacuation of
facility, if necessary; coordinate with drinking water authorities;
mobilize response equipment, as appropriate; and coordinate with local
police and fire officials. Initiate community evacuation plan, if
necessary, and evaluate if downstream (or upstream, if tidally
influenced waterbody) public receptors that could be impacted and may
require evacuation.
(ii) Two hours of discharge detection: As appropriate, deploy
response resources identified in the response plan, including
containment and recovery devices (such as containment dams, culvert
plugs, underflow dams, containment booms, skimmer equipment or acid/
base neutralization resources); and initiate any water, soil, and air
monitoring as outlined in the response plan.
(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 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 including firefighting runoff management;
(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
including an inspection checklist and method to record the inspection
date and findings, to be retained for five years.
(c) Emergency response action plan. The response plan shall include
an emergency response action plan that is maintained in the front of
the response plan, or as a separate document accompanying the response
plan, addresses the first two hours of the incident response followed
by an outline of continued operations appropriate for Incident Command,
and that includes the following information:
(i) The identity and telephone number of a qualified individual
having full authority, including contracting authority, to implement
removal actions;
(ii) The identity of individuals or organizations to be contacted
in the event of a discharge so that immediate communications between
the qualified individual identified in paragraph (a)(2) of this section
and the appropriate Federal officials and the persons providing
response personnel and equipment can be ensured;
(iii) A description of information to provide to response personnel
in the event of a worst case discharge;
(iv) A description of the facility's response equipment and its
location;
(v) A description of response personnel capabilities, including the
duties of persons at the facility during a response action and their
response times and qualifications;
(vi) Plans for evacuation of the facility and a reference to
community evacuation plans, as appropriate;
(vii) A description of immediate measures to secure the source of
the discharge, including the response actions to be taken in the first
two hours of an incident as per paragraph (b)(13) of this section, and
to provide adequate containment and drainage of discharged CWA
hazardous substances;
(viii) A description of the potential discharge pathways of the CWA
hazardous substances to public water systems, public receptors, and
fish, wildlife, and sensitive environments, and estimated time of
travel; and
(ix) A diagram of the facility including evacuation routes.
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
[[Page 21965]]
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, Tribal Emergency
Response Commission or other local emergency planning and response
organizations. The owner or operator 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 into
or on the navigable waters or a conveyance to navigable waters.
(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 and retain that
documentation for the life of the facility, including:
(1) 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
(2) 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.
(3) If a facility owner or operator is unable to coordinate with
their State Emergency Response Commission or Tribal Emergency Response
Commission, Local Emergency Planning Committee or Tribal Emergency
Planning Committee, and/or local fire department, documentation must
show a good faith effort to contact, coordinate, and consult with those
bodies in the frequency described in this section.
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 facility and non-facility personnel
involved in CWA hazardous substance response activities. Training shall
be functional in nature according to job tasks for both supervisory and
non-supervisory operational personnel.
(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 required in Sec. 118.11.
(4) The facility response plan shall include records, including
logs, of CWA hazardous substance facility response plan meetings and
describe the type of response training and dates, review of personnel
responsibilities during a response action, and drills and exercises.
These records may be included in the facility response plan or kept as
an annex to the facility response plan. Completed records will be kept
for five years following each activity. Records required under this
part kept under usual and customary business practices will suffice for
purposes of this paragraph.
(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. If a facility owner or operator is
unable to coordinate with local public emergency response officials,
documentation must show a good faith effort to contact and coordinate
with those bodies.
Appendix A to Part 118: Substantial Harm 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 quantity onsite of a CWA hazardous substance greater than or
equal to the CWA Reportable Quantity (RQ)x 1,000?
Yes__ No__
If Yes, list names, CAS no., and maximum quantities (lbs) onsite
for each CWA hazardous substance:
If No, you do not need to proceed. 2. Is the facility within
one-half mile of navigable waters or a conveyance to navigable
waters?
Yes__ No__
If Yes, list navigable waters and a description of
conveyance(s).
If No, you do not need to proceed.
If the answers to both 1 and 2 are Yes, answer questions 3-6.3.
Is the facility located at a distance such that a worst case
discharge from the facility could cause injury to fish, wildlife,
and sensitive environments? For further description of fish,
wildlife, and sensitive environments (FWSE), see the applicable Area
Contingency Plan (ACP). Attach documentation of the formulas,
assumptions, ACP(s) consulted, and distances calculated.
Yes __ No __
4. Is the facility located at a distance such that a worst case
discharge from the facility could cause injury to public receptors?
Attach documentation of the formulas and distances calculated.
Yes __ No __
5. Would a worst case discharge from the facility cause
substantial harm to a public water system by causing any one, or any
combination of more than one, of the adverse impacts listed below?
(i) Violates any National Primary Drinking Water Standard or
State Drinking Water Regulation, such as exceedance of a Maximum
Contaminant Level;
[[Page 21966]]
(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
(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.
Yes __ No __
Attach documentation of the methodology and assumptions used to
evaluate the potential of a worst case discharge to cause each of
the adverse impacts (i-v).
For each worst case discharge scenario list:
--CWA hazardous substance name, CAS no. and worst case discharge
quantity (lbs)
--Worst case discharge scenario type (single container or
interconnected containers)
--Name(s) of each FWSE receptor(s) and planning distance(s) to FWSE
(feet or miles)
--Type(s) and description(s) of public receptor(s) and planning
distance(s) to public receptor(s) (feet or miles)
--Adverse impacts (i-v) to a public water system
Attach documentation attesting to the required consultation with
the applicable downstream public water system, including name of
public water system, point of contact, and date of consultation for
each potentially impacted public water system. If efforts to
coordinate with the applicable downstream public water systems were
unsuccessful, provide documentation to demonstrate the efforts to
coordinate and provide the distance to the first downstream public
water system intake.
6. Has the facility experienced a reportable CWA hazardous
substance discharge to navigable waters 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):
Navigable water(s) reached:
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 this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified personnel
properly gathered and evaluated the information submitted. Based on
my inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief,
true, accurate, and complete. I have no personal knowledge that the
information submitted is other than true, accurate, and complete. I
am aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment for
knowing violations.
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Endpoints for public receptors LD50 Endpoints for fish, wildlife and
--------------------------------------- sensitive environments using 96-hour
Mammalian toxicity LC50
(oral) (mg/kg) --------------------------------------
Category RQ (lbs.) -------------------------- Aquatic toxicity (mg/
10% (mg/kg) liter)
Lower Upper -------------------------- 10% (mg/L)
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. Amend Sec. 300.185 by revising paragraph (a) 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. Amend Sec. 300.211 by revising 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
[[Page 21967]]
(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. 2024-05870 Filed 3-27-24; 8:45 am]
BILLING CODE 6560-50-P