Clean Water Act Hazardous Substance Facility Response Plans, 21924-21967 [2024-05870]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[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





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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]]


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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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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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
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[[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.
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    \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.
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    \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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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/).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \7\ https://www.epa.gov/dwreginfo/drinking-water-distribution-system-tools-and-resources.
---------------------------------------------------------------------------

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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    \8\ https://www.epa.gov/emergency-response-research/premise-plumbing-decontamination.
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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

[[Page 21944]]

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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    \9\ https://response.epa.gov/site/site_profile.aspx?site_id=15823.
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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.
---------------------------------------------------------------------------

    \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