Contributed by Michael Hurd, Geologist, PPM Consultants
Many industrial facilities are no strangers to facility response plans (FRP) required under Title 40, Code of Federal Regulations (CFR), Part 112, Subpart D. However, the Environmental Protection Agency (EPA) has proposed a rule that will likely be new territory for many facilities throughout the country that are not required to develop and maintain FRPs under 40 CFR 112.
On March 10, 2022, the EPA Administrator signed a proposed rule which would require certain facilities to develop an FRP for a worst-case discharge of a Clean Water Act (CWA) hazardous substance, or threat of such a discharge. The CWA hazardous substance FRP requirements would apply to 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 zones.
The EPA is proposing that existing facilities that meet the criteria in the proposed rule prepare and submit a CWA hazardous substance FRP within 12 months of the Final Rule. In addition, the EPA is also proposing that newly regulated facilities (facilities that come into operation after the effective date of the Final Rule) that meet the criteria outlined in the proposed rule, prepare and submit a CWA hazardous substance FRP within 6 months, but no sooner than 12 months after the effective date of the final rule.
In 1994, the EPA crafted regulations for worst-case discharges of oil under 40 CFR Part 112. However, the EPA has never proposed worst-case discharge planning regulations for CWA hazardous substances under Section 311(j)(5) of the CWA. Section 311(j)(5) of the CWA states that the President “shall also issue regulations which require an owner or operator… 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 oil or a hazardous substance.”
In March of 2019, the Natural Resource Defense Council, on behalf of the Clean Water Action and the Environmental Justice Health Alliance for Chemical Policy Reform, filed suit claiming that the EPA failed to issue regulations mandated by the CWA requiring non-transportation-related substantial harm facilities to plan, prevent, mitigate, and respond to worst-case spills of hazardous substances. In addition, they also claimed that the EPA’s failure to issue these regulations contributed to violation of the Administrative Procedures Act (APA) and CWA. The plaintiffs and EPA entered into a consent decree which, by March 12, 2022, required the EPA to 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 worst-case discharge of CWA hazardous substances proposed rule has the potential to impact a number of different industries. Facilities that are subject to the rule will be required to submit a CWA hazardous substance FRP to the EPA. The EPA is proposing certain screening criteria be met in order to determine whether the facility will need to submit an FRP. The facility must first determine whether they meet or exceed the container capacity threshold quantity of a CWA hazardous substance. The threshold quantity is determined based on whether the maximum capacity onsite of any CWA hazardous substance, at any one time, meets or exceeds 10,000 times its reportable quantity as outlined in 40 CFR Part 117. If the facility meets or exceeds the threshold quantity, then it must be located within 0.5 mile radius of a navigable water or conveyance to navigable water and determine whether they meet one or more of the four proposed substantial harm criteria:
- The ability to adversely impact a public water system;
- The ability to cause injury to fish, wildlife, and sensitive environments;
- The ability to cause injury to public receptors; or
- Have had a reportable discharge of a CWA hazardous substance within the last five years.
In addition to the criteria listed above, the EPA is proposing that an EPA Regional Administrator (RA) have the authority to make a substantial harm determination, regardless of whether the facility meets the container capacity threshold or the 0.5 mile radius to a navigable water body criteria. If the RA determines the facility could reasonably be expected to cause substantial harm following a CWA hazardous substance worst-case discharge, the facility would be required to submit a CWA hazardous substance FRP.
In summary, if your facility meets the proposed threshold quantity, is located within 0.5 mile radius of a navigable water or conveyance, and meets one of the four proposed substantial harm criteria listed above or if the EPA RA determines that your facility could potentially cause substantial harm based on the criteria outlined in the proposed rule, then you would be required to develop an FRP for submittal to the EPA.
The comment period for the proposed rule closed on July 26, 2022. Based on the timeline outlined in the Consent Decree, the EPA has approximately 30 months to finalize the worst-case discharge regulations. Without any delays, that would put the Final Rule into effect in September 2024. Facilities that could be subject to the proposed rule should conduct a thorough review of the detailed requirements contained in the rulemaking.
The proposed rulemaking will undoubtedly face industry pushback and possibly litigation. Depending on possible delays to the rulemaking, facilities should have sufficient time to prepare prior to the proposed rule going into effect.
You can find additional information on the proposed rule here.
If have any questions about CWA FRPs or have additional industrial compliance inquiries, please feel free to reach out to me at email@example.com.