Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations

Federal RegisterMar 28, 2022

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 118 and 300

[EPA-HQ-OLEM-2021-0585; FRL-7881-02-OLEM]

RIN 2050-AH17

Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Clean Water Act (CWA) states that regulations shall be issued which require an owner or operator of a facility to prepare and submit a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of a hazardous substance. The Environmental Protection Agency (EPA or Agency) proposes to require planning for worst case discharges of CWA hazardous substances for onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging CWA hazardous substances into or on the navigable waters, adjoining shorelines, or exclusive economic zone.

DATES:

Comments must be received on or before May 27, 2022.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-HQ-OLEM-2021-0585, by any of the following methods:

—

Federal eRulemaking Portal: https://www.regulations.gov/

(our preferred method). Follow the online instructions for submitting comments.

—

Mail:

U.S. Environmental Protection Agency, EPA Docket Center, EPA-HQ-OLEM-2021-0585 Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

—

Hand delivery or courier (by scheduled appointment only):

EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m., Monday through Friday (except Federal holidays).

Instructions:

All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to

https://www.regulations.gov/,

including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID-19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at

https://www.epa.gov/dockets

FOR FURTHER INFORMATION CONTACT:

Rebecca Broussard, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-564-6706; email:

broussard.rebecca@epa.gov

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

A. Written Comments

II. General Information

A. Does this action apply to me?

B. What action is the Agency taking?

C. What is the Agency's authority for taking this action?

D. What are the costs and benefits of this action?

E. List of Abbreviations and Acronyms

III. Background

A. Statutory Authority and Delegation of Authority

1. Statutory Requirements

2. Delegation of Authority

B. CWA Hazardous Substance Designation and Reportable Quantities

C. Regulatory Background

1. EPA CWA Hazardous Substance Actions

2. EPA Oil Pollution Prevention Regulation

3. USCG CWA Hazardous Substance Worst Case Discharge Actions

D. Litigation

E. CWA Hazardous Substance Discharge History and Impacts Analysis

1. Discharge History and Reported Impacts

2. Most Frequently Discharged CWA Hazardous Substances

3. Impacts to Waterways and Sensitive Environments

4. NRC Data Limitations

5. Data Sources Examined

F. Analysis of Existing Regulatory Programs

IV. Proposed Action

A. Applicability Criteria

1. Screening Criteria

2. Substantial Harm Criteria

3. Other Applicability Criteria

4. Worst Case Discharge Calculations

5. Substantial Harm Certification Form

B. Response Planning

1. Consistency With NCP and ACPs

2. LEPC or TEPC Coordination

3. QI Designation and Duties

4. CWA Hazardous Substance FRP Components

C. Implementation and Enforcement

1. Office Delegation

2. Compliance Dates

3. Confidential Business Information

4. Appeals Process

5. Stakeholder Petitions

6. Consistency With the NCP

D. Additional Considerations

1. Communities With Environmental Justice Concerns

2. Climate Change

3. Facility Density

V. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

I. National Technology Transfer and Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

I. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2021-0585 at

https://www.regulations.gov

(our preferred method), or the other methods identified in the

ADDRESSES

section, above. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at

https://www.regulations.gov

any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (

i.e.,

on the web, cloud, or other file sharing system). For additional submission methods, the full

EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit

https://www.epa.gov/dockets/commenting-epa-dockets

Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at

https://www.epa.gov/dockets

The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that the Agency can respond rapidly as conditions change regarding COVID-19.

II. General Information

A. Does this action apply to me?

A list of NAICS codes at the three-digit level that could be affected by requirements established under CWA section 311(j)(5) is provided in Table 1:

Table 1—Entities Potentially Affected by the Proposed Rule

NAICS 3

North American industry classification system (NAICS) description

111

Crop Production

115

Support Activities for Agriculture and Forestry

211

Oil and Gas Extraction

212

Mining (except Oil and Gas)

213

Support Activities for Mining

221

Utilities

311

Food Manufacturing

314

Textile Product Mills

321

Wood Product Manufacturing

322

Paper Manufacturing

324

Petroleum and Coal Products Manufacturing

325

Chemical Manufacturing

326

Plastics and Rubber Products Manufacturing

327

Nonmetallic Mineral Product Manufacturing

331

Primary Metal Manufacturing

332

Fabricated Metal Product Manufacturing

333

Machinery Manufacturing

335

Electrical Equipment, Appliance, and Component Manufacturing

336

Transportation Equipment Manufacturing

423

Merchant Wholesalers, Durable Goods

424

Merchant Wholesalers, Nondurable Goods

441

Motor Vehicle and Parts Dealers

444

Building Material and Garden Equipment and Supplies Dealers

447

Gasoline Stations

453

Miscellaneous Store Retailers

488

Support Activities for Transportation

493

Warehousing and Storage

511

Publishing Industries (except internet)

522

Credit Intermediation and Related Activities

562

Waste Management and Remediation Services

611

Educational Services

622

Hospitals

811

Repair and Maintenance

812

Personal and Laundry Services

928

National Security and International Affairs

This table is not intended to be exhaustive, but rather provides a likely minimal set of affected entities likely to be regulated by this action. This table lists the types of entities that EPA is aware could potentially be subject to this proposed action. Other types of entities not listed in the table may also be subject to this proposed action. To determine whether your facility is subject to this proposed action, you should carefully examine the applicability criteria proposed in § 118.3. If you have questions regarding the applicability of this action to a particular entity or facility, consult the person listed in the

FOR FURTHER INFORMATION CONTACT

section.

B. What action is the Agency taking?

The EPA is proposing new requirements for Facility Response Plans (FRPs) for worst case discharges of CWA hazardous substances for onshore facilities that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone.

C. What is the Agency's authority for taking this action?

This proposal is authorized by section 311(j)(5) and 501(a) of the CWA, (33 U.S.C. 1321(j)(5), 1361(a)).

D. What are the costs and benefits of this action?

EPA estimated the total costs of the proposed action by combining the per-facility estimates of compliance costs with the estimate of the affected facility universe. EPA estimated the annualized cost of the proposed rule over a 20-year analysis period, using three percent and seven percent discount rates, as presented in Table 2.

Table 2—Total Compliance Cost of the Proposed Action, 20-Year Present Value and Annualized ($2020)

Present value,

Annualized cost,

Present value,

Annualized cost,

Cost

$300,375,193

$28,353,293

$410,322,776

$27,580,136

EPA also estimated the annualized cost of the proposed action to EPA to develop and implement the proposed requirements, which can be found in the Regulatory Impact Analysis (RIA) titled, “Regulatory Impact Analysis: Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations,” available in the docket for this action. The proposed action is expected to have a mitigating effect on CWA hazardous substance worst case discharges because the proposed rule provisions address the kind of damages and adverse impacts expected from this type of discharge. The planning activities associated with developing CWA hazardous substance FRPs are likely to mitigate several damage categories through pre-discharge planning and identification of potential receptors and applicable endpoints; the emergency response information provisions; descriptions of discharge detection systems, hazard evaluation, and training programs; and drills and exercises. Information on previous worst case discharges of a similar nature suggests that the benefits of mitigating these

discharges could be large relative to the proposed rule's estimated cost.

Sections 6 and 7 of the RIA developed for this proposed action provide additional details on costs and benefits, respectively, and EPA solicits comment on the contents therein and associated data sources.

E. List of Abbreviations and Acronyms

ACP Area Contingency Plan

AEGLs Acute Exposure Guideline Levels for Airborne Chemicals

ANPRM Advanced Notice of Proposed Rulemaking

APA Administrative Procedures Act

AWIA America's Water Infrastructure Act

BHP Biodegradation, Hydrolysis, and Photolysis

CAA Clean Air Act

CASRN Chemical Abstract Service Registry Numbers

CBI Confidential Business Information

CCC Criterion Continuous Concentration

CDC Centers for Disease Control and Prevention

CFR Code of Federal Regulations

CMC Criterion Maximum Concentration

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980

CFATS Chemical Facility Anti-Terrorism Standards

CTAC Chemical Transportation Advisory Committee

CWA Clean Water Act

DHS United States Department of Homeland Security

DOI United States Department of the Interior

DOT United States Department of Transportation

EJSCREEN Environmental Justice Screening and Mapping Tool

E.O. Executive Order

EPA United States Environmental Protection Agency

EPCRA Emergency Planning and Community Right-to-Know Act

ERAP Emergency Response Action Plan

ERPGs Emergency Response Planning Guidelines

FR Federal Register

FRP Facility Response Plan

FWSE Fish, Wildlife, and Sensitive Environments

HAZWOPER Hazardous Waste Operations and Emergency Response

ICR Information Collection Request

ICS Incident Command System

IDLH Immediately Dangerous to Life or Health

IRIS Integrated Risk Information System

LC50 Lethal Concentration 50%

LD50 Lethal Dose 50%

LEPC Local Emergency Planning Committee

MCL Maximum Contaminant Level

MOU Memorandum of Understanding

MRLs Minimum Risk Levels

MSHA Mine Safety and Health Administration

MTR Marine Transportation Related

NAICS North American Industry Classification System

NCP National Contingency Plan

NIIMS National Interagency Incident Management System

NIOSH National Institute for Occupational Safety and Health

NOAA National Oceanic and Atmospheric Administration

NPDES National Pollutant Discharge Elimination System

NPRM Notice of Proposed Rulemaking

NRC National Response Center

NTSIP National Toxic Substance Incidents Program

NTTAA National Technology Transfer and Advancement Act

OMB Office of Management and Budget

OPA 90 Oil Pollution Act of 1990

OSC On-Scene Coordinator

OSHA Occupational Safety and Health Administration

OSRO Oil Spill Removal Organization

PALs Provisional Advisory Levels for Hazardous Agents

PCBs Polychlorinated Biphenyls

PHMSA Pipeline and Hazardous Materials Safety Administration

PRA Paperwork Reduction Act

PREP Preparedness for Response Exercise Program

QI Qualified Individual

RA Regional Administrator

RCP Regional Contingency Plan

RCRA Resource Conservation and Recovery Act

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RMP Risk Management Plan

RQ Reportable Quantity

SBA Small Business Administration

SDWA Safe Drinking Water Act

SERC State Emergency Response Commission

SMCRA Surface Mining Control and Reclamation Act

SPCC Spill Prevention Control, and Countermeasure

SRO Spill Response Organization

SWPA Source Water Protection Area

TBD Technical Background Document

TEPC Tribal Emergency Planning Committee

TERC Tribal Emergency Response Commission

TRI Toxics Release Inventory

TSCA Toxic Substances Control Act of 1976 as amended by the Lautenberg Act

TSDF Treatment, Storage, and Disposal Facility

UMRA Unfunded Mandates Reform Act

USCG United States Coast Guard

UST Underground Storage Tank

III. Background

A. Statutory Authority and Delegation of Authority

1. Statutory Requirements

The CWA as amended by the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq; hereafter, “OPA 90”), states, “The President shall issue regulations which require an owner or operator of a tank vessel or facility . . . to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance” (33 U.S.C. 1321(j)(5)(A)(i)). For this action, a facility is determined to be “. . . [an] onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters,

adjoining shorelines, or the exclusive economic zone” (33 U.S.C. 1321(j)(5)(C)(iv)). As described below, the Administrator has been delegated this authority under E.O. 12777 (56 FR 54757, October 18, 1991). The Administrator also has authority under CWA section 501 to prescribe such regulations as are necessary to carry out provisions of the Act. In 33 U.S.C. 1321(j)(5)(D), the CWA states that these response plans must:

Navigable waters are defined in 40 CFR 120.2 as waters of the United States, including the territorial seas. This document will refer to “navigable water” to include “adjoining shorelines and the exclusive economic zone.”

(1) Be consistent with the National Contingency Plan (NCP) and Area Contingency Plans (ACP);

(2) Identify the qualified individual (QI) having full authority to implement removal actions, and require immediate communications between that individual and the appropriate Federal official and the persons providing personnel and equipment;

(3) Identify, and ensure by contract or other means approved by the President the availability of private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge;

(4) Describe the training, equipment testing, periodic unannounced drills, and response actions of persons on the vessel or at the facility, to be carried out under the plan to ensure the safety of the vessel or facility and to mitigate or prevent the discharge, or the substantial threat of a discharge;

(5) Be updated periodically; and

(6) Be resubmitted for approval of each significant change.

EPA's responsibilities in the CWA (33 U.S.C. 1321(j)(5)(E)) for this action for onshore facilities that could reasonably be expected to cause significant and substantial harm to the environment by discharging into or on the navigable waters are to:

(1) Promptly review plans;

(2) Require amendments when plans do not meet the statutory requirements;

(3) Approve plans; and

(4) Review each plan periodically.

Additionally, EPA may require inspection of containment booms,

skimmers, vessels, and other major equipment used to remove discharges (33 U.S.C. 1321(j)(6)(A)). EPA also has the authority to conduct unannounced drills of removal capability in areas for which Area Contingency Plans (ACPs) are required and under relevant FRPs (33 U.S.C. 1321(j)(7)).

2. Delegation of Authority

Under E.O. 12777 (56 FR 54757, October 18, 1991), EPA was delegated the authority to regulate non-transportation-related onshore facilities and non-transportation-related offshore facilities landward of the coastline.

DOT was the delegated authority for transportation-related facilities and the U.S. Coast Guard (USCG) was delegated the authority for tank vessels and marine transportation-related (MTR) facilities. Section 2(i) of E.O. 12777 allows for further delegation between the agencies as later occurred in a February 3, 1994 MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59 FR 9494, February 28, 1994). DOI redelegated 33 U.S.C. 1321(j)(5) authority to regulate non-transportation-related offshore facilities landward of the coastline to EPA. This MOU applies to both oil and CWA hazardous substance facilities.

E.O. 12777 Implementation of Section 311 Of The Federal Water Pollution Control Act of October 18, 1972, as Amended, and the Oil Pollution Act of 1990. See

https://www.archives.gov/federal-register/executive-orders/1991.html#12777.

EPA has delegated authority over offshore facilities landward of the coastline as per 40 CFR part 112 Appendix B. However, this action is limited to non-transportation-related onshore facilities as defined in the consent decree described in Section III.D of this document. EPA solicits data, information, and comment on CWA hazardous substance facilities located offshore landward of the coastline and their regulation under this action.

B. CWA Hazardous Substance Designation and Reportable Quantities

The term “hazardous substance” is defined in the CWA as those substances designated pursuant to 33 U.S.C 1321(b)(2), wherein EPA is authorized to list hazardous substances which, when discharged in any quantity into jurisdictional waters, present an imminent and substantial danger to public health or welfare, including, but not limited to, fish, shellfish, wildlife, shorelines, and beaches (33 U.S.C. 1321(a)(14)).

Once a chemical (

i.e.,

“element and compound”) is designated as a CWA hazardous substance, the reportable quantity is established by regulation under 33 U.S.C. 1321(b)(4). Section 311 of the CWA prohibits discharges of CWA hazardous substances in quantities that may be harmful into navigable waters and waters of the contiguous zone, except where permitted under the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973,

and where permitted in quantities and at times and locations or under such circumstances or conditions as the President may, by regulation, determine not to be harmful (33 U.S.C 1321(b)(3)).

Protocol of 1978 relating to the International Convention for the prevention of pollution from ships, 1973 (with annexes, final act and International Convention of 1973). Concluded at London on 17 February 1978; registered by the International Maritime Organization on 26 November 1983.

https://treaties.un.org/doc/Publication/UNTS/Volume%201340/volume-1340-A-22484-English.pdf.

C. Regulatory Background

1. EPA CWA Hazardous Substance Actions

EPA designated a list of CWA hazardous substances in 40 CFR part 116

and subsequently established reportable quantities (RQs) for those substances in 40 CFR part 117, the discharge of which at or above the RQ is a violation of CWA section 311(b)(3) and requires notice, including notice as set forth in 40 CFR 117.21 and the National Contingency Plan in 40 CFR 300.125(a).

The RQs constitute the quantities EPA deemed may be harmful and were initially based on a five-level rating system derived from acute aquatic toxicity and set in 40 CFR 117.3. The most acutely toxic CWA hazardous substances were classified as Category X and assigned a one-pound RQ, which was determined based on the smallest container commonly used in commerce.

Under EPA's scaled system, EPA assigned the other categories on a proportional basis. If the upper aquatic toxicity limit of a category is 10 times the upper limit of the preceding, more toxic category, then the harmful quantity was set as 10 times larger, excepting category D, at five times larger, and so forth. CWA RQs (in lbs.) for the five categories are X: 1, A: 10, B: 100, C: 1,000, and D: 5,000.

43 FR 10474, March 13, 1978.

44 FR 50766, August 29, 1979.

43 FR 10496, March 13, 1978.

2. EPA Oil Pollution Prevention Regulation

Promulgated under the authority of CWA section 311, the Oil Pollution Prevention regulation sets forth requirements for the prevention of, preparedness for, and response to oil discharges at specific non-transportation-related facilities (see 40 CFR part 112). The goal of the regulation is to prevent discharges of oil and oil mixed with hazardous substances from onshore facilities and to contain such discharges. The regulation requires facilities to develop and implement Spill Prevention, Control, and Countermeasure (SPCC) Plans and establishes procedures, methods, and equipment requirements to prevent oil discharges to navigable waters or adjoining shorelines.

Additionally, subpart D of the Oil Pollution Prevention regulation requires certain facility owners or operators to prepare and submit a facility response plan (FRP) for responding to a worst case discharge of oil. The Oil Pollution Prevention FRP requirements apply to a subset of SPCC-regulated facilities from which a discharge, or substantial threat of discharge, may cause substantial harm to the environment.

See 40 CFR part 112 Appendix C.

3. USCG CWA Hazardous Substance Worst Case Discharge Actions

In response to OPA 90, the USCG published rulemaking actions regarding response plans for CWA hazardous substances. On May 3, 1996, the USCG published an Advance Notice of Proposed Rulemaking (ANPRM) addressing vessel and facility response plans (61 FR 20084, May 3, 1996). USCG held two public meetings in 1996 and then developed proposed regulations and published two separate NPRMs for tank vessels and MTR facilities in 1999 (64 FR 13734, March 22, 1999) and 2000 (65 FR 17416, March 31, 2000), respectively. On February 17, 2011, USCG reopened the comment period. In 2019, USCG withdrew their proposed rulemakings (84 FR 2799 and 84 FR 2800, February 8, 2019) based on findings of the Chemical Transportation Advisory Committee (CTAC) that the proposed rules are no longer applicable to the current state of chemical industry spill response. Specifically for MTR facilities, “[d]ue to the services and requirements industry frequently engages in to satisfy insurance requirements and company sustainability polices, together with the existence of new terminal inspection protocols like that developed by the Chemical Distribution Institute, CTAC was unable to identify any significant gaps in hazardous substance spill response planning at marine transportation-related facilities that would be reduced by the 2000 proposed rulemaking” (84 FR 2799-2800).

Additionally, for vessels, “CTAC also identified many areas in which the NPRM may overlap with existing local, state, and international regulatory schemes as well as current industry practice” (84 FR 2799). To date, a USCG regulation has not been finalized.

D. Litigation

On March 21, 2019, the Natural Resources Defense Council, on behalf of Clean Water Action and the Environmental Justice Health Alliance for Chemical Policy Reform filed suit in the United States District Court for the Southern District of New York alleging violations of CWA 311(j)(5)(A)(i) and the Administrative Procedures Act (APA).

The first claim alleged that EPA's failure to issue “regulations mandated by the [CWA] requiring non-transportation-related substantial-harm facilities to plan, prevent, mitigate and respond to worst case spills of hazardous substances . . . constitutes a failure to perform a non-discretionary duty or act in violation of the [CWA].” The second claim alleged that, “EPA's failure to issue these regulations constitute[d] agency action unlawfully withheld contrary to and in violation of the [APA] and the [CWA].” The plaintiffs requested an order from the Court to compel EPA to promulgate CWA Hazardous Substance Worst Case Discharge Planning Regulations. Following EPA's Answer, filed on June 4, 2019, the plaintiffs and EPA entered discussions regarding a potential resolution of the lawsuit.

Complaint for Declaratory and Injunctive Relief,

Environmental Justice Health Alliance for Chemical Policy Reform

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 that resolved the litigation.

The consent decree requires that within two years (24 months) of entry into the consent decree, or by March 12, 2022, EPA will sign a notice of proposed rulemaking pertaining to the issuance of the CWA Hazardous Substance Worst Case Discharge Planning Regulations for non-transportation-related onshore facilities. The consent decree further requires EPA to sign a notice taking final action within an additional two and a half years, or 30 months after publication of the proposal. This proposed action satisfies EPA's first obligation under the consent decree.

Envtl. Justice Health All. for Chem. Reform

EPA,

No. 1:19-cv-02516-VM, Document 32 (S.D.N.Y., filed March 12, 2020).

E. CWA Hazardous Substance Discharge History and Impacts Analysis

To gain a historic perspective of CWA hazardous substance discharges to water over time, EPA researched and analyzed multiple sources of available CWA hazardous substance discharge data. EPA analyzed National Response Center (NRC) data on CWA hazardous substances discharges to water. 40 CFR 117.21 requires immediate notification to the NRC once the person in charge of a vessel or an offshore or onshore facility has knowledge of a discharge of a CWA hazardous substance from the facility in quantities equal to or exceeding its assigned RQ in any 24-hour period. Reporters may not always be familiar with RQ levels for CWA hazardous substances and reported quantities released are usually inaccurate or unknown, the NRC will field and process all reported CWA hazardous substance incidents and forward the initial information to the Federal On-Scene Coordinator (OSC) for further investigation. Reports are also made under the NCP reporting requirement in 40 CFR 300.125. NRC data are generated by notifications received immediately following a discharge and often lack complete information on chemicals and quantities discharged, incident and response details, impacts, and locations. Although the data have limitations of accuracy, completeness, and over- and under-reporting of incidents, the NRC database is the most comprehensive database for CWA hazardous substance discharges. It is important to recognize that these data reflect the impacts reported upon discovery of an incident (

e.g.,

evacuations, injuries, hospitalizations, fatalities, waterway closures, and water supply contamination), which often result directly from the event that caused the discharge, rather than the totality of impacts that could be attributed to the discharge itself. In many cases, it can take days, weeks, and even months to fully characterize the harm caused by a discharge. NRC data are not updated to reflect that harm. This analysis is also hindered by the lack of a robust national database of the types of CWA hazardous substance discharges that EPA is proposing to regulate in this action.

1. Discharge History and Reported Impacts

While there are notable instances of high-volume discharges of non-CWA hazardous substances to water, EPA found limited data on historical worst cases discharges to water of CWA-regulated hazardous substances and the NRC has no information related to the origination of the data cited in this section and Table 3. Between 2010 and 2019, 252,238 total discharges were reported to the NRC. Of those, 98,306 were non-transportation-related, of which CWA hazardous substance discharges comprised 19,657. EPA then identified 2,489 non-transportation-related CWA hazardous substance discharges which either reached water (1,311) or it is unknown whether they reached water (1,178). Of the 2,489 discharges in those categories, 131 had reported impacts. Finally, of those 131, EPA identified 52 discharges of CWA-regulated hazardous substances that could be linked to non-transportation-related facilities (

i.e.,

within EPA's regulatory jurisdiction). Given the generally cursory nature of data provided to the NRC as part of an emergency notification, the Agency was unable to determine whether any of the 52 discharges could have been considered worst case discharges (

i.e.,

the largest foreseeable discharge in adverse weather conditions, including a discharge resulting from fire or explosion; see Section IV.A.3.b of this preamble) of CWA hazardous substances based on volume and impacts.

The NRC database does not identify how many of the 2,489 discharges involving a CWA hazardous substance reached or may have reached navigable waters. For this analysis, EPA took a conservative approach and assumed that all discharges impacted navigable water.

Over the 10-year period of 2010 to 2019, the average number of CWA hazardous substance discharges declined from 289 to 219 discharges (a decrease of 24 percent). EPA has no information as to the cause of this decline.

2. Most Frequently Discharged CWA Hazardous Substances

A chart of the distribution by CWA hazardous substance of the 2,489 CWA hazardous substance discharges that may have reached water is shown in Table 3.

Table 3—Distribution of Discharges by CWA Hazardous Substance 2010 to 2019.

CWA Hazardous substance

Discharged (percent)

PCBs

Sulfuric acid

Sodium hydroxide

Ammonia

Benzene

Hydrochloric acid

Chlorine

Sodium hypochlorite

Other

Source: NRC.

The majority of discharges (55 percent, or 1,358) comprised polychlorinated biphenyls (PCBs), typically PCB-containing transformer leaks or discharges, most often due to vehicles colliding with transformers (most likely on telephone poles). Fifteen chemicals accounted for 90 percent of CWA hazardous substance discharge incidents (by frequency, not by volume), 263 of 362 CWA hazardous substances (includes alternate names) had no reported discharges, and 80 CWA hazardous substances had fewer than 10 discharges.

EPA banned PCBs in 1979 and while they are no longer commercially produced, they are still present in materials and products produced before the ban. EPA regulates PCBs through the Toxic Substances Control Act of 1976 (TSCA). Implementation of TSCA includes a PCB cleanup policy which addresses mitigating the impacts of PCB discharges. Additionally, most PCBs discharges or threats of discharges are comingled with oil. Oil of any kind and in any form, including oil mixtures, are subject to regulation under EPA's Oil Pollution Prevention regulation. Please see the Technical Background Document (TBD) for additional information.

3. Impacts to Waterways and Sensitive Environments

In reviewing the identified 131 non-transportation-related CWA hazardous substance discharges that may have reached water with reported impacts, EPA determined that 46 involved residences, dumping, third-party damage to transformers (typically vehicle crashes), swimming pools, drills or exercises (not actual discharges), vehicles, incidents that occurred outside of the time period (pre-2010) but were reported later, duplicates, incidents outside of the United States, or miscellaneous hydraulic fracturing reports (

e.g.,

odor coming from tap due to drilling occurring nearby).

Of the remaining 86 discharges, 52 could be linked to non-transportation-related facilities that are within EPA's regulatory jurisdiction. Of note:

—Water supply contamination: 50 incidents (six discharges reached water, 44 discharges where it is unknown if discharges reached water

)

Indicator in NRC database for water contamination provides options of yes, no, and unknown to have reached water. Forty-four of these incidents reported `unknown' if reached water. The data are unclear as to whether any of these incidents reached water and/or whether they contaminated the water.

—Waterway traffic corridor closed: Two incidents (one discharge reached water, one discharge where it is unknown if the discharge reached water)

Other impacts,

to the extent to which known, are described in Table 4. Since the NRC fields and processes initial incident information, impact information cited in Table 4 is most often unknown.

No fatalities resulted from a CWA hazardous substance discharge. The only fatality identified was due to a tractor trailer collision on a bridge where the driver perished, and the vehicle landed on the toe of a temporary cap on an EPA Superfund site.

Table 4—Other Reported Impacts of CWA Hazardous Substance Discharges From Non-Transportation-Related Facilities That May Have Reached Water 2010 to 2019

Other reported impacts

Number of incidents

Number of individuals

Notes

Evacuations

1,115

Typically impacts facility workers.

Shelter-in-place

No data available

Barge offloading toluene discharged 50 gallons into the Mississippi River.

Injuries (without hospitalizations)

All reported injuries appear to be workers onsite, but NRC data are not explicit.

Hospitalizations

All reported hospitalizations appear to be workers onsite, but NRC data are not explicit.

4. NRC Data Limitations

The NRC data on which EPA relied for this analysis have numerous limitations. As described in the subsequent section, EPA has not been able to identify another dataset which is more complete and/or includes the types of discharges that would be regulated by this proposed rule, so despite their limitations, EPA is using the NRC data for this analysis. There may be impacts (

i.e.,

additional or other than evacuations, injuries, hospitalizations, fatalities, waterway closures, and water supply contamination) from the universe of CWA hazardous substance discharges to jurisdictional water from non-transportation-related facilities which were not reported to the NRC and, thus, could not be quantified in this analysis. These may include the loss of productivity due to a facility or process unit shutting down because of a discharge, emergency response and restoration costs, transaction costs such as the cost of resulting litigation, damages to water quality, fish kills, or impacts to property values due to changes in perceived risk or reduced ecological services. EPA was not able to identify data sources to quantify these impacts, other than the cited data from the NRC. The NRC data are discussed and analyzed further in the RIA.

5. Data Sources Examined

Since the mission of the NRC is to be the initial point of contact for all oil and hazardous substances releases and forward that information to the Federal OSC for response, the initial data collected does, in most cases, have limitations. Due to this lack of information on discharges with impacts in the NRC database, EPA examined additional data sources including:

—National Oceanic and Atmospheric Administration (NOAA) Incident News

—Risk Management Plan (RMP)

rule five-year accident history data

Chemical Accident Prevention Provisions, RMP (40 CFR part 68).

—Toxics Release Inventory (TRI) discharge to water data

—Survey data from previous CWA Hazardous Substance Spill Prevention rulemaking effort

EPA sent a voluntary survey to states, tribes and U.S. territories in June 2018 as part of the final Clean Water Act Hazardous Substances Spill Prevention rulemaking (84 FR 46100; September 3, 2019) requesting information on the number and type of EPCRA Tier II facilities reporting CWA hazardous substances onsite, as well as information about historical discharges of CWA hazardous substances, ecological and human health impacts of those discharges, and existing state and tribal regulatory programs that serve to prevent discharges of hazardous substances (Docket EPA-HQ-OLEM-2017-0444).

—National Toxic Substance Incidents Program (NTSIP)

—Chemical Safety and Hazard Investigation Board Reports

—State discharge reports

EPA did not identify any instances of worst case discharges of CWA hazardous substances (

i.e.,

the largest foreseeable discharge in adverse weather conditions, including a discharge resulting from fire or explosion, see Section IV.A.3.b of this preamble) previously unknown to the Agency from the above list of data sources. The RIA contains additional information on these data sources and EPA's research to identify discharge information sources. EPA requests data on occurrences of CWA hazardous substance discharges into navigable waters along with documented impacts.

F. Analysis of Existing Regulatory Programs

To understand the degree to which CWA hazardous substances worst case discharge planning requirements are regulated under existing regulations, the Agency reviewed and analyzed the current Federal and state regulatory framework as well as industry standards for overlap with and coverage of CWA hazardous substance worst case discharge FRP provisions required by CWA section 311(j)(5) as detailed in Section III of this preamble.

EPA's analysis did not find any combination of Federal programs that comprehensively cover all the CWA section 311(j)(5)(D) requirements for all CWA hazardous substances. CWA hazardous substance facilities subject to the Oil Pollution Prevention Program requirements or RMP rule will have some overlap for the required program elements. RCRA hazardous waste regulations are comprehensive for CWA hazardous substances present as waste. State programs do not provide uniform coverage and are a patchwork, while industry standards are voluntary.

The TBD compares the programs analyzed to the CWA hazardous substance FRP required program elements and provides a matrix of each program examined and elements of those programs that have requirements comparable to those in CWA section 311(j)(5).

EPA analyzed the following EPA requirements:

—America's Water Infrastructure Act of 2018 Amendments to section 1433 of the Safe Drinking Water Act (42 U.S.C. 300i-2)

—Chemical Accident Prevention Provisions, RMP (40 CFR part 68)

—Emergency Planning and Community Right-to-Know Act:

—Emergency Planning Notification and Emergency Release Notification (40 CFR part 355)

—Hazardous Chemical Reporting: Community Right-to-Know (40 CFR part 370)

—Toxic Chemical Release Reporting: Community Right-to-Know (40 CFR part 372)

—National Pollutant Discharge Elimination System (NPDES) Regulations

—NPDES (40 CFR part 122)

—General Pretreatment Regulations for Existing and New Sources of Pollution (40—CFR part 403)

—Oil Pollution Prevention Regulations

—Subpart A, Applicability, Definitions, and General Requirements for All Facilities and All Types of Oils, SPCC (40 CFR part 112)

—Subpart D, Response Requirements, FRP (40 CFR 112.20 and 112.21)

—Pesticide Regulations

—Pesticide Management and Disposal (40 CFR part 165)

—Pesticide Agricultural Worker Protection Standard (40 CFR part 170)

—Resource Conservation and Recovery Act (RCRA) Regulations

—Criteria for Classification of Solid Waste Disposal Facilities and Practices Subpart D, Standards for the Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments (40 CFR part 257)

—Standards Applicable to Generators of Hazardous Wastes (40 CFR part 262)

—Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities (TSDF) (40 CFR parts 264 & 265)

—Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks (UST) (40 CFR part 280)

—TSCA: PCBs Manufacturing, Processing, Distribution in Commerce, and Use Prohibitions (40 CFR part 761)

EPA also analyzed the following non-EPA Federal requirements:

—Mine Safety and Health Administration (MSHA) Subchapter H—Education and Training, Subchapter I—Accidents, Injuries, Illnesses, Employment, and Production in Mines (30 CFR parts 46-50)

—Occupational Safety and Health Administration Regulations:

—Hazard Communication Standard (HazCom) (29 CFR 1910.1200)

—Hazardous Waste Operations and Emergency Response (HAZWOPER) (29 CFR 1910.120)

—Process Safety Management of Highly Hazardous Chemicals (29 CFR 1910.119)

—Emergency Action Plan (29 CFR 1910.38)

—Pipeline and Hazardous Materials Safety Administration (PHMSA) Hazardous Materials Regulations (49 CFR parts 171-179)

—Surface Mining Control and Reclamation Act (SMCRA) Mineral Resources, Office of Surface Mining Reclamation and Enforcement, Department of the Interior (30 CFR parts 700-999)

—United States Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) (6 CFR part 27)

EPA also analyzed the existing state regulatory framework for CWA hazardous substance FRPs for all 50 states and found 27 programs with elements potentially comparable to those required by CWA section 311(j)(5), available in the TBD. EPA found state coverage is an inconsistent patchwork and cannot be relied upon for uniform, nationwide CWA hazardous substance FRP requirements.

Additionally, EPA analyzed existing industry standards related to CWA hazardous substance FRPs for four standards with elements potentially comparable to those required by CWA section 311(j)(5). However, these standards are voluntary and do not provide comprehensive coverage of proposed CWA hazardous substance FRP program elements.

Again, the TBD contains a more detailed discussion of each proposed program element and regulation, program, or standard. EPA solicits comment on this analysis as well as on other programs or standards EPA should examine.

IV. Proposed Action

EPA is proposing a regulatory program whereby those facilities that

could reasonably be expected to cause substantial harm to the environment, based on their location, are required to prepare and submit CWA hazardous substance FRPs for worst case discharges to the EPA. EPA will approve only those CWA hazardous substance FRPs submitted for facilities that could cause significant and substantial harm to the environment. EPA proposes that FRPs must be consistent with the NCP and ACPs; identify the qualified individual having full authority to implement response actions and require immediate communications between that individual and the appropriate Federal official and the persons providing personnel and equipment, with a description of duties; identify, and ensure by contract or other approved means, the availability of private personnel and equipment necessary to respond to the maximum extent practicable to a worst case discharge of CWA hazardous substances (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge; describe the training, equipment testing, periodic unannounced drills, and response actions of persons at the facility; and review and update facility response plan periodically and resubmit to the RA for approval of each significant change. Specific CWA hazardous substance FRP components will include: facility information, owner or operator information, hazard evaluation, reportable discharge history, response personnel and equipment, evidence of contracts or other approved means to ensure the availability of personnel and equipment, notification lists, discharge information, personnel roles and responsibilities, response equipment information, evacuation plans, discharge detection systems, response actions, disposal plans, containment measures, training and exercise procedures, self-inspection, a coordination activities. Please see section IV.B of this preamble for specific discussion of each of these components.

To identify potential elements to include in this proposal, EPA reviewed existing regulations that include emergency response planning provisions as well as the USCG regulatory proposals to establish requirements for CWA hazardous substance worst case discharges. Specifically, EPA considered existing requirements for Oil Pollution Prevention FRPs under 40 CFR part 112 (or oil FRPs) given that these requirements have been in place since 1994 and were promulgated under the same statutory authority as this proposal. Of note, CWA hazardous substances vary widely in physical and chemical properties when compared to oils; EPA has closely considered these variations in this proposal. Additionally, EPA examined requirements under the RMP rule under 40 CFR part 68, which implements section 112(r)(7) of the Clean Air Act and requires facilities that use regulated substances to develop an RMP.

A. Applicability Criteria

The statute governing CWA hazardous substances worst case discharges specifies that those facilities that could reasonably be expected to cause substantial harm to the environment, based on their location, are required to prepare and submit CWA hazardous substance FRPs for worst case discharges to the EPA. EPA will approve or disapprove only those CWA hazardous substance FRPs submitted for “significant and substantial harm facilities.”

EPA is proposing in § 118.3 two initial screening criteria to determine whether a facility, because of its location, could cause substantial harm to the environment from a worst case discharge into or onto navigable water. The first step in assessing applicability is to determine whether a facility has the container capacity for a CWA hazardous substance onsite at or above a threshold quantity. If so, the facility owner or operator then determines whether the facility is within one-half mile to navigable water or a conveyance to navigable water. EPA solicits comment on alternative or additional screening criteria with supporting rationale and data. If those two conditions are satisfied, the owner or operator determines whether the facility meets any of the four substantial harm criteria: The ability to adversely impact a public water system; the ability to cause injury to fish, wildlife, and sensitive environments (FWSE); the ability to cause injury to public receptors; and/or having had a reportable discharge of a CWA hazardous substance within the last five years. If any of those substantial harm criteria are met, then the owner or operator must submit a CWA hazardous substance FRP to EPA. Additionally, EPA is proposing in § 118.5(a) that an EPA Regional Administrator has the authority to require CWA hazardous substance FRPs, after consideration of site-specific factors for a facility, regardless of whether a facility meets the criteria in proposed § 118.3. To determine whether a facility could reasonably be expected to cause substantial harm following a CWA hazardous substance worst case discharge, EPA is proposing factors for the RA to evaluate in § 118.5(b). Please see further discussion of Regional Administrator authorities to require CWA hazardous substance FRPs and determination of significant and significant and substantial harm in A.2.f of this section.

Proposed applicability criteria include:

Threshold Quantity:

To account for the 296 different CWA hazardous substances with various properties, EPA is proposing to apply a maximum capacity onsite criterion threshold quantity for each CWA hazardous substance by using a multiplier of the CWA RQ, based on the RQ categories specified in 40 CFR part 117.

Facility location:

EPA is proposing to use facility location relative to navigable waters as an applicability screening criterion for CWA hazardous substance FRP facilities. Specifically, facilities meeting or exceeding the CWA hazardous substance maximum capacity onsite threshold quantity and located within one-half mile of a navigable water or a conveyance to a navigable water must determine if the facility meets at least one substantial harm criterion.

Ability to cause injury to fish, wildlife, and sensitive environments (FWSE):

EPA proposes a substantial harm criterion for facilities located at a distance such that a CWA hazardous substance discharge has the potential to cause injury to FWSE. EPA proposes to codify parameters and toxic endpoints to be used by facility owners when determining whether a worst case CWA hazardous substance discharge could cause injury to FWSE.

Ability to adversely impact a public water system:

EPA is proposing to require facility owners or operators to coordinate with nearby public water systems to determine whether a CWA hazardous substance worst case discharge could adversely impact a public water system.

Ability to cause injury to public receptors:

EPA is proposing a substantial harm criterion for facilities located at a distance such that a CWA hazardous substance discharge could cause injury to public receptors. EPA proposes a definition for public receptors as those areas where the public could be exposed to a CWA hazardous substance worst case discharge to navigable waters. EPA further proposes that the same parameter and toxic endpoints used for the FWSE substantial harm criterion

apply for determining injury to public receptors.

Reportable discharge history:

EPA is proposing a substantial harm criterion that identifies whether the facility has had a reportable CWA hazardous substance discharge to water within the last five years. A reportable discharge is defined in 40 CFR 117.21 as any discharge in quantities equal to, or exceeding, in any 24-hour period, the reportable quantity in 40 CFR 117.3, the discharge of which violates CWA section 311(b)(3).

EP28MR22.242

EPA is proposing a definition of “facility” in § 118.2 that is adopted from the Oil Pollution Prevention regulation at 40 CFR 112.2.

This definition is broad and captures the types of facilities intended to be regulated by EPA under CWA hazardous substance worst case discharge regulations. The Agency recognizes that under this definition, the owner or operator has the discretion to determine what constitutes a facility. That is, the proposed rule may become applicable to a facility in cases of aggregation of buildings, structures, or equipment and associated storage or type of activity, or the division of the facility may end applicability due to separation of buildings, structures, or equipment and associated CWA hazardous substance storage or type of activity. However, an owner or operator may not make facility determinations indiscriminately and in such a manner as to simply avoid applicability of the proposed rule (for example, the division of one facility into separate facilities with one CWA hazardous substance container located at each facility where all containers are located side-by-side or in close proximity to each other and are used for the same purpose). EPA solicits comment on this definition and any appropriate adjustments with supporting rationale and data.

See EPA's “SPCC Guidance for Regional Inspectors”

https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/spcc-guidance-regional-inspectors.

1. Screening Criteria

a. CWA Hazardous Substance Capacity Threshold Quantity

i. 10,000× CWA Hazardous Substance RQ Multiplier

In § 118.3, EPA is proposing that if the maximum capacity onsite, as defined in § 118.2 (the total aggregate container capacity for each CWA hazardous substance present at all locations within the entire facility at any one time) at the facility of any CWA hazardous substance, at any one time, meets or exceeds 10,000 times its RQ, the facility has met the threshold quantity. If a facility's container capacity meets or exceeds the threshold quantity for any one CWA hazardous substance and the facility is within one-half mile of navigable waters, then the facility owner or operator must determine if the facility meets at least one substantial harm criterion proposed in this action. If so, the entire facility would be subject to the CWA hazardous substance FRP requirements proposed in this action for all CWA hazardous substances stored or used at the facility.

EPA chose to use a multiplier of the CWA hazardous substance RQ as the threshold quantity because RQs represent a quantity that may be harmful when discharged to navigable waters. For a facility to cause substantial harm to the environment, it would need to reasonably be expected to cause a discharge in a quantity larger than the RQ and would therefore need to have the capacity to store significantly larger quantities onsite.

RQs exist for all CWA hazardous substances and reflect relative (in relation to other CWA hazardous substances, due to the five categories detailed below, see Table 5) and aquatic

toxicity.

In accordance with 40 CFR 117.21, CWA hazardous substance discharges to navigable waters or adjoining shorelines require notification to the NRC when the CWA hazardous substance discharge is equal to, or exceeds, in any 24-hour period, the RQ in 40 CFR 117.3.

These values were later adopted by Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

The RQs were originally developed in 1979 and adjusted beginning with an evaluation of the intrinsic physical, chemical, and toxicological properties of each CWA hazardous substance. The intrinsic properties examined, also called the “primary criteria,” were aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation), ignitability, reactivity, chronic toxicity, and potential carcinogenicity.

Generally, for each intrinsic property, EPA ranked CWA hazardous substances on a scale, associating a specific range of values on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000 lbs. EPA evaluated the data for each CWA hazardous substance using various primary criteria; each CWA hazardous substance may have received several tentative RQ values based on its particular intrinsic properties. The lowest of the tentative RQs became the “primary criteria RQ” for that substance, which EPA used to assign an initial category of X, A, B, C, or D. After EPA assigned the primary criteria RQ, EPA further evaluated substances for their susceptibility to certain degradative processes, which were used as secondary adjustment criteria. These natural degradative processes were biodegradation, hydrolysis, and photolysis (BHP). If a CWA hazardous substance, when discharged into the environment, degrades relatively rapidly to a less hazardous form by one or more of the BHP processes, its RQ (as determined by the primary RQ adjustment criteria), was generally adjusted down one level (

e.g.,

from Category A to Category B). Conversely, if a CWA hazardous substance degrades to a more hazardous product after its discharge, the original substance was assigned an RQ equal to the RQ for the more hazardous substance, which may have been one or more levels higher than the RQ for the original substance (

e.g.,

from Category C to Category A). This approach in developing RQs may not reflect the ignitability or reactivity of single substances or among multiple substances that may comingle, or the potential for the additive or synergistic effects in the toxicity of two or more CWA hazardous substances.

In 1979, EPA established RQs at 40 CFR 117 (44 FR 50766, August 29, 1979), which used the acute aquatic toxicity of the CWA hazardous substances to determine RQs. For a detailed discussion of this methodology, see 43 FR 10489-92 (March 13, 1978) and 40 FR 59982-89 (December 30, 1975). In 1985, EPA amended 40 CFR part 117 to make reportable quantities adjusted under CERCLA the applicable reportable quantities for hazardous substances pursuant to CWA section 311 (50 FR 13456, April 4, 1985). In this action, EPA established a methodology for adjusting RQs, which established “primary criteria” as aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation), ignitability, reactivity, and chronic toxicity. EPA subsequently established a methodology for including potential carcinogenicity as a “primary criterion” (see, for example, 54 FR 33418, August 14, 1989 and 54 FR 33426, August 14, 1989).

Table 5—CWA Hazardous Substance Categories and Reportable Quantities

Category

(lbs)

Mammalian toxicity (oral)

(mg/kg)

Lower

Upper

10%

(mg/kg)

Aquatic toxicity (mg/L)

Lower

Upper

10%

(mg/L)

0.1

0.01

0.1

0.01

0.1

100

1,000

100

5,000

100

500

100

500

While this approach does not account for inhalation toxicity, EPA concluded that any air releases (even from a liquid discharge to navigable water) are more appropriately covered under the CAA. This proposal is focused on worst case discharges to navigable water, due to the statutory authority upon which this action is based, however, EPA notes that exposure pathways are complex. In some scenarios, aerial deposition on waterways may be an important exposure pathway for public receptors and FWSE. EPA solicits comment on the appropriateness of requiring facility owners or operators to assess whether worst case discharges could cause injury to public receptors via inhalation exposures to either the parent compounds or degradation byproducts (

e.g.,

phosgene emanating from chlorinated solvents exposed to high temperatures) and/or following volatilization followed by aerial deposition on waterways of concern. EPA is proposing in § 118.11 that CWA hazardous substance FRPs consider potential inhalation risks in the hazard evaluation, discharge detection systems, and response resources.

ii. Alternative Approaches

EPA reviewed several information sources for human health toxicity values and associated endpoints for public receptors including: EPA Integrated Risk Information System (IRIS) reference doses or reference concentrations, National Institute for Occupational Safety and Health's (NIOSH) Immediately Dangerous to Life or Health (IDLH), Acute Exposure Guideline Levels for Airborne Chemicals (AEGLs), Emergency Response Planning Guidelines (ERPGs), Minimum Risk Levels (MRLs), and Provisional Advisory Levels for Hazardous Agents (PALs). Of these, AEGLs, IDLHs, and ERPGs are relevant to emergency response, but are based on inhalation toxicity tests not relevant to water discharge exposures. While PALs are potentially relevant, they are available for only six CWA hazardous substances. Additionally, PALs toxicity values are not provided for acute exposures of less than 24 hours and EPA judged that shorter exposures are more relevant for the emergency discharge scenarios covered by this rulemaking. Similarly, while MRLs are established for 88 of the CWA hazardous substances, they have acute exposures for only 24 hours (not less than 24 hours).

Additional information on the toxicity values reviewed is available in the TBD.

EPA also considered a stratified approach, which would first apply MRLs for those 88 CWA hazardous substances for which MRLs exist, followed by 10 percent of the CWA RQ toxicity bounds provided to create the RQ categories in 40 CFR part 117. Using the MRLs may provide a more accurate representation of human exposure risk. However, the MRLs do not use an acute toxicity value that would be appropriate for this action. Under a discharge to water scenario, the duration of human exposure should be at most hours, and not over one day. Additionally, a stratified approach may be overly complicated and difficult for regulated entities to understand and implement.

Finally, EPA considered not including ability to cause injury to public receptors as a substantial harm criterion. The Agency anticipates that the greatest risk to human health is through drinking water contamination, which would be covered under the substantial harm criterion of the ability to adversely impact public water systems. This approach would omit any specific substantial harm criteria for public receptors. It is unclear how many public receptors would be impacted by a worst case discharge of a CWA hazardous substance.

However, not accounting for human health effects beyond public water system impacts may be shortsighted. An assumption of no prolonged exposure relies on timely detection, notification, and response, which cannot necessarily be assumed, particularly if there are no CWA hazardous substance FRP requirements for the facility.

EPA solicits comment on the appropriateness of its proposed definition of public receptor, including ability to cause injury to public receptors as a substantial harm criterion, EPA's approach to air releases, the proposed approach, and alternative approaches, including supporting rationale and data.

d. Reportable Discharge History

i. Proposed Approach

EPA is proposing in § 118.3(c)(4) to include reportable discharge history as a substantial harm criterion. A discharge at or exceeding the RQ, as listed in 40 CFR 117.3, that violates CWA section 311(b)(3) (

i.e.,

reaches navigable waters or adjoining shorelines) is a reportable discharge. If a facility that meets the screening criteria has had a reportable discharge within the last five years that reached water, the facility would be considered a facility that has the potential to cause substantial harm in the event of a worst case discharge.

40 CFR 117.21 outlines requirements to report CWA hazardous substance discharges. Once a facility owner or operator has knowledge of a discharge at or exceeding the RQ, they must report the discharge in accordance with 33 CFR part 153.203 (

i.e.,

to the NRC or, if not practicable, to the USCG or EPA predesignated OSC for the geographic area where the discharge occurred). This reporting requirement serves as a trigger for informing the government of a discharge so that Federal personnel can evaluate the need for a response action and undertake any necessary action in a timely fashion in accordance with the NCP.

ii. Alternative Approaches

EPA considered an alternative approach where a reportable discharge would include a discharge above the RQ that may not have impacted water. EPA anticipates this approach would be

more protective in that it would capture more discharges and thus result in more facilities meeting this substantial harm criterion. Further, initial reporting to the NRC is often done with incomplete information and before it is clear whether a discharge has violated CWA section 311(b)(3) and a review of these reports may not accurately identify circumstances where facilities have impacted navigable waters. However, EPA concluded that it is more appropriate to remain consistent with CWA statutory authority when establishing substantial harm criteria, including specifically considering instances where discharges violate CWA section 311(b)(3).

EPA also looked to the NCP to identify whether that would help to establish an appropriate basis for a reportable discharge quantity to determine the potential to cause substantial harm. However, The NCP does not provide a quantitative value for major releases of hazardous substances. Instead, the NCP states that a major release of a hazardous substance poses a substantial threat to public health or welfare or the environment, or results in significant public concern. The OSC makes the final determination of the appropriate classification of a hazardous substance release based on the specifics of the particular release scenario.

Regulated facilities would need to determine whether any of their releases in the past five years have met the major release definition. Facilities exceeding the onsite threshold quantity of CWA hazardous substances that are within one-half mile of navigable water and that have also had a major discharge would self-certify as meeting substantial harm criteria and be required to submit a CWA hazardous substance FRP. This may be difficult to evaluate and enforce, since there are no metrics to consider in the NCP definition of size classes for this approach.

See 40 CFR 300.5, Size classes.

EPA also considered not including reportable discharge history as a substantial harm criterion. This would simplify this substantial harm determination but may not be a logical approach, since EPA determined that discharge history can be a reliable indicator of future discharge potential.

EPA solicits comment on including reportable discharge history as a substantial harm criterion, the time horizon for discharge history to be examined, as well as on whether EPA should use the RQ, a discharge that reached water, some other metric, and/or a “major release” of a hazardous substance as defined in the NCP to determine which discharges should be considered for this criterion, as well as supporting rationale and data.

e. Other Substantial Harm Criteria Considerations

i. Climate Change Risk Considerations

EPA recognizes that the potential to cause substantial harm to the environment is not static and evolves over time as factors at the facility change, especially factors related to the changing climate and the corresponding increase in adverse weather events and their severity. EPA considered a forward-looking approach where a facility owner and operator would determine the facility's vulnerability to climate change impacts in terms of discharge potential due to flooding, increased extreme weather events, and other changes, such as sea level rise and subsidence.

EPA judged that the proposed criteria, which rely on consideration of adverse weather conditions (see Section IV.A.3.b.i of this preamble), capture this forward-thinking approach; however, the Agency is particularly interested in feedback on how best to ensure ongoing consideration of climate risks in preparing for CWA hazardous substance worst case discharges. EPA solicits comments, suggestions and supporting rationale and data on how best to incorporate climate risks into CWA hazardous substance FRPs.

ii. Consideration of Passive Mitigation Measures and Administrative Controls

EPA considered including lack of adequate secondary containment as a substantial harm criterion for this action but concluded this would be difficult for regulated entities to implement and for EPA to enforce for CWA hazardous substances.

First, secondary containment may not be an appropriate discharge prevention measure for all CWA hazardous substances. CWA hazardous substances vary widely in physicochemical properties and prevention and response strategies correspondingly differ based on the substance. Prescribing specific containment requirements for each of the 296 CWA hazardous substances as well as mixtures would be difficult to determine and evaluate and may be inappropriate for some substances altogether. Requirements to prevent CWA hazardous substances discharges are based on many different regulatory regimes and industry standards and thus may be difficult for an inspector to assess.

Further, EPA is proposing in § 118.6 to allow facility owners and operators to appeal their substantial harm determination. This appeal can include consideration of prevention measures and/or secondary containment and/or reduce their worst case discharge planning quantity using the process. Therefore, a substantial harm criterion for adequate secondary containment is not necessary.

EPA also considered proposing to allow for passive mitigation and administrative controls in distance planning for a worst case discharge to FWSE, public water systems, and public receptors in § 118.10 to further encourage facilities to use secondary containment or other prevention measures, where appropriate. Passive mitigation could be defined as equipment, devices, or technologies that function without human, mechanical, or other energy input, but not active mitigation systems, if such systems are capable of withstanding destructive events (

e.g.,

fires, explosions, floods, hurricanes, and earthquakes). Scenarios involving passive mitigation systems that have connections to the environment (such as a rainwater drain valve) would have to assume failure of that connection. The threat of natural disasters would be specific to certain geographic regions, and sources could certify that their passive mitigation meets or exceeds local natural disaster design standards as capable of withstanding destructive natural events. USTs might also be considered a passive mitigation system for liquids. This would be similar to the RMP program's allowance of passive mitigation in offsite consequence analyses.

EPA did not take that approach in this proposed regulation because in the event of a worst case discharge during adverse weather conditions, it is entirely likely that passive mitigation measures or administrative controls could fail.

See 40 CFR 68.25(h), 68.28(d).

EPA solicits comment on whether and how to include passive mitigation measures, such as secondary containment, and administrative controls in determining substantial harm, as well as whether to consider passive mitigation and administrative controls in planning distance calculations. EPA also solicits comment and data on CWA hazardous substances for which secondary containment and/or passive mitigation might not be appropriate. Additionally, EPA solicits comment on examples of secondary containment, passive mitigation measures, or administrative controls that mitigated discharges thereby avoiding a CWA section 311(b)(3) violation.

iii. Transfers Over Water

EPA considered, but did not choose to propose, a separate threshold quantity for facilities that transfer CWA hazardous substances to or from vessels over water as a “substantial harm” criterion. The Oil Pollution Prevention FRP requirements in 40 CFR part 112 contain provisions for facility transfers of oil over water to and from vessels and has a total oil storage capacity greater than or equal to 42,000 gallons. EPA lacks information on these types of facilities for CWA hazardous substances and on whether those facilities pose a greater threat to human health and the environment.

In 2000, the USCG estimated that 225 companies owned approximately 450 facilities transferring bulk chemicals to or from vessels in the United States (65 FR 17416, March 31, 2000). This estimate did not account for chemicals on the CWA hazardous substances list (40 CFR 116.4). The number of facilities under EPA jurisdiction with transfer operations over water of CWA hazardous substances is unknown. The USCG proposed (65 FR 17416, March 31, 2000) that all MTR facilities that transfer any bulk CWA hazardous substances to vessels be designated as “significant and substantial harm” facilities unless otherwise reclassified by the Captain of the Port.

In establishing a threshold for over-water transfers, EPA also considered proposing to use the same ratio as the Oil Pollution Prevention FRP program threshold quantity for oil storage capacity for facilities that do not transfer over water (1,000,000 gallons) to those that transfer over water (42,000 gallons) to CWA hazardous substances. In this approach, facilities meeting initial screening criteria and transferring approximately 4 percent of the RQ 10,000 multiplier over water would automatically be considered to meet the substantial harm criteria and be required to prepare and submit a CWA hazardous substance FRP. Alternatively, EPA considered proposing another lower multiplier of the RQ (

e.g.,

10x, 100x) as the threshold amount for facilities transferring CWA hazardous substances over water. EPA did not adopt these approaches because the Agency lacks information about these types of CWA hazardous substance facilities and their potential to cause substantial harm to the environment.

EPA solicits comment on these approaches to develop a substantial harm criterion for facilities that transfer CWA hazardous substances over water, including whether EPA should include a criterion for facilities transferring CWA hazardous substances over water, what threshold quantity would be appropriate for these facilities, and whether EPA should consider a blanket determination that these facilities pose both significant and substantial harm to the environment. EPA further requests data or information on the number and types of facilities conducting CWA hazardous substance over-water transfers currently operating in the United States.

f. Regional Administrator (RA) Determinations of Substantial Harm and Significant and Substantial Harm

The CWA directs the President to develop criteria to identify those facilities that could reasonably be expected to cause substantial harm to the environment. Consistent with the approach in 40 CFR part 112 for oil FRPs, EPA concluded that the RA has the authority to require CWA hazardous substance FRPs, after consideration of site-specific factors for a facility, regardless of whether a facility meets the criteria in proposed § 118.3. In § 118.5(a), EPA is proposing language that identifies the RA authority and the notification requirements and timeframe within which the facility owner or operator must submit the plan. EPA judged that this is appropriate for CWA hazardous substances due to the wide variability in the substances themselves, how they are used and stored, surrounding communities, and other local considerations of which the RA will have considerable knowledge.

To determine whether a facility could reasonably be expected to cause substantial harm following a CWA hazardous substance worst case discharge, EPA is proposing factors for the RA to evaluate in § 118.5(b). The RA can consider transfer operation type; CWA hazardous substance quantities and categories onsite; proximity to FWSE and other areas that possess ecological value; ability to adversely impact public water systems; location in a SWPA; ability to cause injury to public receptors; reportable discharge history; lack of passive mitigation measures, including measures that enhance resilience to climate change; potential for a worst case discharge to cause harm to communities with environmental justice concerns; potential vulnerability to climate change; or other site-specific characteristics and environmental factors that the RA determines to be relevant to protecting the public or environment from substantial harm by CWA hazardous substances discharges into navigable waters. These factors provide flexibility for EPA to identify those facilities that could cause substantial harm to the environment that might not otherwise fit the criteria proposed in this action.

Furthermore, the CWA directs the President to develop criteria to identify a subset of the substantial harm facilities that could reasonably be expected to cause both significant and substantial harm to the environment. EPA is proposing in § 118.5(d) that the RA can consider, in addition to the substantial harm criteria found in §§ 118.3(c) and 118.5(b), factors that include: Frequency of past reportable discharges; proximity to navigable waters or conveyances to navigable waters; age of equipment; potential for hazards such as flooding, hurricanes, earthquakes, or other disasters that could result in a worst case discharge; and other facility-specific and Region-specific information, including local impacts on public health. The Agency concluded that these considerations, in addition to the substantial harm criteria proposed in §§ 118.3(c) and 118.5(b), provide a flexible, risk-based approach to designating facilities that meet substantial harm or significant and substantial harm criteria. By allowing the RA to consider a wide variety of data points and local considerations, he or she can appropriately target those CWA hazardous substance facilities posing a significant and substantial harm to human health or the environment to prepare CWA hazardous substance FRPs and require EPA approval of those plans.

Consistent with CWA requirements, EPA is proposing to specify actions that EPA will take to review CWA hazardous substance FRPs in § 118.5(c). This includes promptly reviewing plans, requiring amendments, approving plans, and reviewing plans on a schedule.

Finally, EPA is proposing in § 118.6 a process for facility owners or operators to appeal the substantial harm or significant and substantial harm determinations. See Section IV.C. of this preamble for further discussion.

EPA solicits comments on these provisions and supporting rationale or data for alternative approaches.

3. Other Applicability Criteria

a. Exceptions

EPA analyzed applicability exceptions for major EPA and Federal non-EPA hazardous substances regulations. EPA also reviewed industry and use-specific exemptions in EPA hazardous substances programs. These exceptions can extend so far as to exclude facilities storing or using hazardous substances in exempted

categories from all requirements of the program.

EPA is proposing in § 118.8(a)(4) to except USTs as defined in 40 CFR part 280 from the regulatory requirements in this action. This proposed exception aims to reduce the burden of overlapping regulatory requirements. Under 40 CFR part 280, a hazardous substance UST is defined as an underground storage tank system containing a hazardous substance defined in section 101 of CERCLA, including mixtures of substances with petroleum, which is not a petroleum UST system. For the hazardous substances UST program, owners and operators must report releases to the Agency within 24 hours, take immediate action to prevent any further release of the substance, and identify and mitigate fire, explosion, and vapor hazards.

USCG regulates facilities transferring oil or hazardous materials in bulk and considers exemption requests from facilities.

USCG reviews exemption requests to determine that compliance with the regulatory requirement is economically or physically impractical; that no alternative procedures, methods or equipment standards exist that would provide an equivalent level of safety from pollution by hazardous materials; and the likelihood of discharge does not increase as the result of an exemption. EPA addresses this petition issue (discussed in detail in Section IV.C.4 of this preamble) through proposing to adopt language allowing facilities to request reconsideration of substantial harm status from the RA. Therefore, the Agency is not proposing to adopt language allowing facilities to request reconsideration of substantial harm status from the RA as an exemption but solicits comment on whether a similar provision is needed for this proposed regulation.

See 33 CFR 154.108.

b. Threshold Exemptions

Several hazardous substance regulations, under both EPA and other Federal agencies, exempt the counting of hazardous substances with specific uses towards the calculation of the threshold quantity. EPA is proposing in § 118.8(b) to exempt articles and specific uses including in use as a structural component of the facility; use of products for routine janitorial maintenance; use by employees of foods, drugs, cosmetics, or other retail and personal items containing the CWA hazardous substance; process water or cooling water; use of CWA hazardous substances present in process water or non-contact cooling water as drawn from the environment or municipal sources; use of CWA hazardous substances present in air used either as compressed air or as part of combustion; and retail and personal uses.

The intent of these exemptions is to reduce the burden of incorporating limited quantities of hazardous substances contained within articles and other products listed, which are unlikely to be discharged in a worst case scenario. EPA proposes to adopt these exemptions in counting CWA hazardous substances toward total threshold quantity calculations.

c. Alternative Exceptions and Exemptions

EPA solicits comments and rationale for excluding any industries, product types, or uses for both excepted from all regulatory requirements (§ 118.8(a) Exceptions) as well as in threshold quantity calculations (§ 118.8(b) Exemptions).

4. Worst Case Discharge Calculations

In § 118.2, EPA is proposing a regulatory definition for worst case discharge for onshore non-transportation-related facilities. Specifying the definition is necessary for a facility owner or operator to determine a planning quantity that corresponds to the largest foreseeable amount of a CWA hazardous substance that could be discharged under worst case circumstances when preparing a response plan, and to determine distance to endpoints for applicability. EPA is proposing a definition for distance to endpoint in § 118.2 as the distance a CWA hazardous substance will travel before dissipating to the point that a worst case discharge will no longer cause injury to public receptors or fish, wildlife, and sensitive environments as in proposed Appendix B or adversely impact a public water system as in proposed § 118.3(c)(2). The facility's worst case discharge quantity will significantly affect the response resources and equipment necessary to implement the plan. The CWA defines a worst case discharge as the largest foreseeable discharge in adverse weather conditions.

EPA is proposing to adopt this definition in this action, consistent with the Oil Pollution Prevention FRP program and DOT's worst case discharge regulations. EPA is proposing in § 118.10 that for all CWA hazardous substances, the worst case discharge scenario will represent the largest capacity container of a single CWA hazardous substance, which meets or exceeds the threshold quantity at the facility as a whole, in a container or group of interconnected containers. Therefore, the facility owner or operator need only to define one worst case discharge quantity regardless of how many CWA hazardous substances are present onsite. However, an FRP will need to identify and plan for all CWA hazardous substances with a maximum capacity on site that meets or exceed the threshold quantity.

See 33 U.S.C. 1321(a)(24).

EPA recognizes that there are advantages and disadvantages to establishing a worst case discharge quantity for a facility. Specific information on the worst case discharge scenario will assist facility and public emergency planners and responders recognize the maximum hazard potential surrounding the facility. This allows planners to identify the necessary resources and equipment to respond to the worst case discharge from the facility.

However, the worst case discharge scenario may be unlikely in comparison to other discharge scenarios with smaller quantities of CWA hazardous substances posing lesser potential consequences. Focusing on the worst case scenario alone, therefore, could lead facility owners and operators, public agencies, and the public to overestimate the threat posed by a facility and commit unnecessary resources for planning purposes. EPA solicits comment on the proposed definition of a worst case scenario, as well as the approach to focus on a single worst case discharge planning quantity for a facility that could have multiple CWA hazardous substances onsite.

a. Adverse Weather Conditions

The worst case discharge scenario is defined as the largest foreseeable discharge in adverse weather conditions. EPA is proposing in § 118.2 to define adverse weather conditions as weather conditions that hinder response activities and that must be considered in identifying appropriate response strategies, tactics, and equipment, to include the potential for increased incidence and severity of extreme weather events due to climate change, as well as other climate change impacts. EPA judged that this definition is appropriately forward-looking and encompasses a wide range of potential weather conditions due to climate change that could affect a facility's potential worst case discharge and response to such a discharge. EPA solicits comment on this definition and alternative language and considerations.

b. Worst Case Discharge Scenarios

i. Proposed Approach

In § 118.10, EPA is proposing to require facilities to develop one worst case discharge scenario for the container with the largest capacity of a CWA hazardous substance with a maximum capacity onsite that meets or exceeds the threshold quantity in one container or group of interconnected containers. This would capture the worst case discharge at the facility for CWA hazardous substances and be used to both determine applicability and for the FRP hazard evaluation.

This action is focused on worst case discharges of CWA hazardous substances and EPA is not proposing to require planning for less than worst case discharge scenarios, as per the statutory authority. Additionally, planning for a worst case discharge should help ensure that the appropriate plans, response personnel, and equipment are ready should a less than worst case discharge occur.

This approach may be problematic for some facilities such as batch processors and warehouses where the use of CWA hazardous substances or inventory may vary considerably. It also would not account for a facility that could have different worst case discharge scenarios reaching two different bodies of water or requiring different response resources under adverse weather conditions.

ii. Alternatives to Proposed Worst Case Discharge Approach

I. Additional Worst Case Scenarios if Response Equipment Differs

EPA considered requiring one worst case scenario for the largest capacity container or group of interconnected containers at a facility and additional scenarios for additional CWA hazardous substances if the response equipment differs from the primary worst case scenario. One worst case discharge scenario would be defined for the largest capacity container of a single CWA hazardous substances above a threshold quantity or group of interconnected containers, as detailed in the proposed worst case discharge quantity. However, if the facility also has a second CWA hazardous substance that exceeds the threshold quantity which would require differing response equipment or procedures than the primary worst case scenario, the facility must develop a second worst case scenario. This would account for a facility that could have different CWA hazardous substances reaching different navigable waters, one CWA hazardous substance reaching multiple navigable waters, or different CWA hazardous substances reaching the same navigable waters but requiring different response equipment, which all occur in adverse weather conditions. However, this still may be problematic for some facilities such as batch processors and warehouses where use of CWA hazardous substances or inventory may vary considerably.

II. Additional Worst Case Scenarios if Receptors Differ

EPA also considered requiring one worst case scenario for each CWA hazardous substance with a maximum capacity onsite above the threshold quantity if different receptors would be affected and different response resources would be required. One worst case discharge scenario would be defined to represent each CWA hazardous substance above a threshold quantity in its largest container. A facility would be required to evaluate worst case scenarios for each CWA hazardous substance at the facility, unless it can show that no additional receptors (public water system, FWSE, or public receptors) would be impacted in a worst case discharge with the additional CWA hazardous substance(s) or categories of CWA hazardous substances. Each worst case scenario would include planning distance calculations.

III. Additional Worst Case Scenarios Based on Hazard Class

EPA considered requiring additional worst case discharge scenarios based on hazard classification. In this situation, an owner or operator would model a worst case discharge scenario for each hazard class of the CWA hazardous substances with a capacity onsite above a threshold quantity at his or her facility. Requiring scenarios based on hazard classification may clarify response requirements and ensure equipment and response resources available are appropriate to each class of hazardous substance present onsite, since response considerations are likely to be similar within hazard classes. Additionally, industry and responders should be familiar with these types of commonly used classification systems. Examples of common hazard classification systems are DOT's hazard classification system found at 40 CFR 173.2 or the CWA hazardous substance reportable quantity categories in 40 CFR 117.3.

EPA solicits comment on requiring additional worst case discharge scenarios based on hazard classification, including the preferred classification system and reasons for its use.

IV. Alternative Discharge Scenarios

EPA also considered requiring alternative discharge scenarios. This approach would require facility owners or operators to evaluate additional alternative discharge scenarios to account for more probable discharge scenarios and varying adverse weather conditions which could impact different downstream receptors compared to the worst case discharge. EPA recognizes that the worst case scenario may often be improbable compared to other discharge scenarios with potentially fewer and less serious consequences. Focusing on the worst case scenario alone, therefore, could lead facility planners, public agencies, and the public to overestimate the threat posed by a facility. Therefore, EPA considered requiring facilities to examine a range of events in addition to the worst case scenario, including more probable discharges, and communicating information on these events to public agencies and the public to provide additional information on the hazards posed by the facility. This approach would reflect disparate chemical risk and offsite consequences. However, it is unclear whether requiring facilities to examine more probable discharge scenarios would result in a different emergency response action as compared to the worst case discharge.

Either the facility owner or operator or EPA would need to determine the appropriate number of alternative discharge scenarios to be evaluated. Although the worst case scenario is specifically defined, facilities are likely to use varying models and approaches to estimate offsite impacts, which may be appropriate in accounting for site-specific conditions associated with other scenarios.

EPA solicits comment on the worst case discharge number of scenarios, scenarios for different CWA hazardous substances onsite, quantity calculations, examining chain reactions of failures, methodologies, and the types of alternative discharge scenarios facilities should consider with supporting rationale and data. EPA also solicits comment on allowing consideration of active mitigation, which could be equipment, devices, or technologies that need human, mechanical, or other energy input to function, in worst case discharge scenarios. Examples of active mitigation for CWA hazardous substance discharges to land and water could include containment dams in onsite conveyances, culvert plugs, chemical neutralization, sorbent materials, and other measures.

c. Worst Case Discharge Distance to Endpoints

EPA is proposing in § 118.10(b) that a facility owner or operator may use a methodology, model, or other technique that accounts for the stated requirements to calculate the distance to each endpoint. An owner or operator may use proprietary models provided that he or she allows EPA access to the model and describes the model's features to local emergency planners, upon request. The stated requirements are:

Identifying endpoints:

This step in the process requires the identification of endpoints for each CWA hazardous substance. EPA is proposing endpoints in Appendix B for FWSE and public receptors.

Calculating the distance to endpoints:

Endpoints are critical in calculating distances from the nearest opportunity for discharge, within which human health and the environment could expect to be adversely affected. In addition to the characteristics of the CWA hazardous substances the FRP addresses, distances to endpoints are affected by planning quantities and impact analysis parameters.

3. Compare endpoint concentration(s) against calculated concentration(s).

The Agency recognizes facilities will need to have in-house expertise or hire consultants with such expertise to complete these offsite impact analyses. This may pose a significant resource burden on some facilities. The Agency requests comment on approaches to minimize this burden and ensure the results are useful for facility and local emergency planners.

The Agency recognizes the limitations associated with simple, generic tools needed to cover a potentially wide variety of scenarios. It would be difficult to construct a generic methodology inclusive of all chemical characteristics and other site-specific parameters. As a result, a generic methodology will generally be less sensitive to these site-specific conditions and therefore may provide less realistic estimates of offsite impacts. The Agency requests comment on this approach and requests input on possible innovative ways to assist facilities in offsite impact analysis that might reduce the burden and provide meaningful, useful results.

d. Worst Case Discharge Quantity

In § 118.10(a), EPA is proposing that the worst case planning quantity be based on the largest capacity container of a CWA hazardous substance or group of interconnected containers for a CWA hazardous substance with a maximum capacity onsite above the threshold quantity. For mixtures, an owner and operator should assume the entire capacity of the container holds the CWA hazardous substance with the lowest RQ. Using the container or interconnected containers with the largest storage capacity as a worst case discharge quantity provides a conservative approach by using the largest potential discharge quantity. It may also be simpler for both facilities and EPA to calculate storage capacity versus the maximum quantity stored in a single container or group of interconnected containers.

Under CWA section 311, a worst case discharge is defined as the largest foreseeable discharge in adverse weather conditions, including a discharge resulting from fire or explosion. This quantity will be used in the distance planning calculation to determine whether a facility is considered to meet substantial harm criteria with respect to the various receptors. The worst case discharge quantity will also be used by the facility owner or operator to plan appropriate response resources, equipment, and actions.

EPA considered but is not proposing to allow facilities to take written administrative controls that limit the maximum quantity in a container into account. EPA determined that these types of controls may be overridden or are easily overlooked, and thus may not be reliably counted on to limit quantities. EPA solicits comment on allowing administrative controls to be accounted for in worst case discharge quantity calculations.

EPA is not proposing to apply a credit for single-facilities with existing secondary containment for the worst case discharge quantity for CWA hazardous substances. In the Oil Pollution Prevention FRP program (Appendix D to 40 CFR part 112), for the worst case discharge planning volume calculation at single-tank facilities, secondary containment credit is applied by multiplying the capacity of the tank by 0.8 (

i.e.,

80 percent of the tank capacity). Please see the discussion of secondary containment and passive mitigation in Section IV.A.2.e.ii of this preamble.

For this action, interconnected containers are defined containers that are connected via pipes, hoses, or other conveyance to allow movement of a CWA hazardous substance between containers. In a worst case discharge scenario, a single failure could cause the discharge of the contents of more than one container if they are interconnected. The owner or operator must provide evidence in the response plan that containers with common piping or pip

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