EPA publishes proposed Clean Water Act rule

On March 28, 2022, The Environmental Protection Agency (EPA) published the proposed rule titled “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations” in the Federal Register (87 FR 17890 (March 28, 2022)). This proposed rule would be applicable to all onshore, non-transportation-related facilities that have the capacity to store Clean Water Act (CWA) hazardous substances above designated thresholds and could reasonably be expected to cause substantial harm to the environment due to a discharge into navigable waters or on adjoining shorelines or exclusive economic zones.

The proposed rule (designated as 40 CFR 118) would require facilities meeting the applicable thresholds and substantial harm criteria to prepare a Facility Response Plan (FRP) for a worst-case discharge of CWA hazardous substances. The proposed requirements for development of an FRP to comply with this proposed rule closely follow those required by the Oil Pollution Prevention regulations (40 CFR 112.20) with modifications specific to CWA hazardous substances.

A broad spectrum of industries will be required to evaluate the proposed regulatory requirement to prepare a FRP for their facilities that store CWA hazardous substances listed in 40 CFR 116. As proposed, industries including electric generation, chemical manufacturing, iron and steel production, mining and many others, must first determine if an on-site storage capacity threshold for a CWA hazardous substance exceeds one of the following:

• The maximum storage capacity on site for any CWA hazardous substance listed at 40 CFR 116 meets or exceeds 10,000 times the Reportable Quantity (RQ) found at 40 CFR 117; or
• The maximum storage capacity on site for a mixture in which the quantity of all of the CWA hazardous substance constituents is known, meets or exceeds 10,000 times the RQ of any CWA hazardous substance in the mixture by extrapolating the amount of each constituent to the full capacity of the container; or
• The maximum storage capacity on site for a mixture in which the quantity of all of the CWA hazardous substance constituents is unknown, meets or exceeds 10,000 times the RQ of the known CWA hazardous substance in the mixture with the lowest threshold quantity by extrapolating the amount of that constituent to the full capacity of the container.

If one of these CWA hazardous chemical storage capacity thresholds is exceeded and the facility is located within 0.5 miles of navigable waters or a conveyance to navigable waters, then one must evaluate the applicability of four prescribed substantial harm criteria.

1. Is the facility located at a distance such that a discharge from the facility could cause injury to fish, wildlife, and sensitive environments?
2. Is the facility located at a distance such that a discharge from the facility could adversely impact a public water system?
3. Is the facility located at a distance such that a discharge from the facility could cause injury to public receptors?
4. Has the facility experienced a reportable CWA hazardous substance discharge within the last five years?

The process by which these substantial harm criteria are to be evaluated requires facilities to self-determine formulas and methodologies to model overland or in-water transport of CWA hazardous substances. EPA is proposing to provide the CWA hazardous substance-specific toxicity thresholds and parameters for overland transport and in-water transport.

Comments on the proposed rule will be accepted until July 26, 2022.

Ultimately then, the onus is on the facility to determine (1) where sensitive receptors are located, and (2) if, based on the parameters provided, a worst-case discharge of CWA hazardous substances would result in exposure of receptors to a concentration equal to or greater than the toxicity threshold concentration provided by EPA.

If the worst-case discharge scenario is determined to meet any of the substantial harm criteria, the facility is required to prepare an FRP to address all CWA hazardous substances with on-site storage capacity that exceeds the threshold quantity.

EPA notes that an FRP prepared in accordance with the National Response Team’s Integrated Contingency Plan Guidance (One Plan) would satisfy the requirements of the proposed rule. Additionally, existing FRPs prepared to meet the requirements of 40 CFR 112.20 may be augmented to meet the requirements specific to this proposed rule.  EPA is soliciting comments on the proposed rule until July 26, 2022 (www.regulations.gov). The prescribed timeline for regulatory development requires EPA to take final action on the rule no later than September 2024. In accordance with the proposed rule, facilities subject to the requirements of the final regulation would have 12 months from the date that the rule is finalized to prepare the required FRP.  

If you have questions about how this development may impact your business operations, please contact any member of CEC’s experienced spill prevention and environmental emergency response planning team, including Jason Fronczek of our Monroeville Office at 724-387-6329 or via email at jfronczek@cecinc.com or Jim Zentmeyer of our Cincinnati Office at 513-483-3506 or via email at jzentmeyer@cecinc.com.